So an opinion came out of the 7th Circuit yesterday on whether embedding video was a form of copyright infringement. Flava Works was a porn company that had its materials behind a paywall, and myVidster was a bookmarking site that allowed users to embed said material without running into the paywall. Since the 7th Circuit doesn’t allow you to permanently link to a PDF, I’m linking to my copy, complete with creative title.

I leave the deep analysis to the law professors, but some thoughts.

  • Criminal and civil trials are hard to distinguish, and civil trials lead to less snappy headlines. As Mike Masnick (of Techdirt) pointed out on Twitter, Cnet’s headline of “Embedding copyright-infringing video is not a crime, court rules“ was factually incorrect. But “Embedding copyright-infringing video does not create intermediary liability for copyright infringement, court rules” is not quite as interesting sounding.
  • Some poor clerk had to come up with a tactful way to describe black gay porn in the opinion: “__Flava specializes in the production and distribution of videos of black men engaged in homosexual acts.” Pretty good.
  • Posner, who wrote the opinion for the panel of judges, uses a lot of metaphor to demonstrate why he doesn’t think that myVidster or its users are infringing. We get myVidster compared to a “telephone exchange” (pg. 7), watching the embedded video compared to “stealing a copyrighted book from a bookstore and reading it” (pg. 7). He compares accusing users of MyVidster of copyright infringement  to accusing someone who “snuck into a movie theater and watched a copyrighted movie without buying a ticket” of copyright infringement. (pg. 9) There are more on pg 15 and pg 17. 
  • It’s almost funny to see how much opinions on new forms of technology rely on comparison to old forms, both in case law cited and in grounding. In case law, metaphors happen because they allow judges to compare and contrast the facts of the case with already settled law. But in this opinion it seems more like a rhetorical technique, meant to make sure that all the readers are on Posner’s page. “You wouldn’t call this copyright infringement? Would you?” brings to mind “You wouldn’t steal a car?” where the response from the Internet was, “I would totes download a car if I could.” Wonder if the MPAA has considered arguing that unauthorized theater sitting is copyright infringement.