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Is Linking To Pirated Content A Liability?

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The online video copyright issue is set to get more intense as legal lines come closer into focus. The YouTube and Viacom case, in the unlikely event it sees a courtroom, would be large enough to solidify some ground rules. There are also international complications, which makes one wonder if the World Wide Web will one day necessitate a Virtual World Court.  

Is Linking To Pirated Content A Liability?
Is Linking To Pirated Content A Liability?
Is Linking To Pirated Content A Liability?

Something like that, with its inherent sovereignty issues, will take longer to work out than the parameters of copyright and fair use. So rather than immerse ourselves in a concept so hairy, let’s consider more present issues.

With recent information suggesting that Viacom’s lawsuit against YouTube is a bit heavy-handed considering the relatively low occurrence of inadvertent copyright infringement on the site, it makes one seek clearer-cut, more intentional piracy. 

TechCrunch’s Michael Arrington points to smaller sites with their hands dipped deep into the piracy pool – sites like France-based Daily Motion. He also brings attention to Allsp.com, a British-owned site dedicated to the TV show "South Park," Viacom’s Comedy Central money tree.

Allsp.com, registered a Max Fret, allows visitors access to every "South Park" episode from every season. It’s access to the episodes because Allsp says they don’t actually host the shows, just provide "a link" to DailyMotion, from where the episodes are streamed.

But the show itself streams via a video viewer on the site itself. A request for comment was met with a simple email from a "Mr. Watson" (assumed because of email name) wordlessly directing to the Disclaimer portion of the website, apparently refusing to expand any further.

It would seem Allsp.com has been bombarded with accusations of illegality, as the disclaimer is more than a little testy in tone:

…ALLSP.com does NOT host any content, all ALLSP does is link to content that was uploaded to popular Online Video hosting sites like dailymmotion.com and Youtube.com. All youtube/dailymotion users signed a contract with the sites when they set up their accounts which forces them not to upload illegal content. By clicking on any Links to videos while surfing on ALLSP.com you leave ALLSP.com, ALLSP.com cannot take the responsibility for any content hosted on other sites.

ALLSP does not upload or even encourage the uploading of copyright protected material to sites such as Dailymotion or YouTube.

As a side note for those of you who wrongly believe that allsp is illegal, then you’ve effectively said that Google is illegal…

The author has drawn some interesting (if questionable) lines regarding his responsibility for copyrighted content on his site; especially interesting is the metaphysical claim that when watching a "South Park" episode at Allsp.com, you are "leaving" the site to do so – just like when a person meditates, they "leave" their physical bodies.

Google has prevailed so far with its fair use argument in the United States, claiming that indexing, linking to, and displaying snippets of content is acceptable practice. However, Google hasn’t been so lucky in other countries.

But it seems a bit of a stretch to compare Allsp with Google, as there is no Google frame around entire content selections, and Google doesn’t present copyrighted material to the searchers on its homepage, or even bring "links" to pirated material front and center. Note also all the copyrighted imagery used for the viewer skin.

In the US system, websites can be held liable for linking to infringing content. Eric Goldman, Assistant Professor and Director Santa Clara University’s High Tech Law Institute, wouldn’t comment on Allsp.com, but did provide some excellent perspective to website liability.

Here are four general principles (but not necessarily all principles) to consider when assessing the limits of third-party linking, fair use, and copyright enforcement:

1) In general, a website should not be directly liable for linking to infringing content.  First, a link by itself doesn’t infringe the linked site’s copyright (see, e.g., Ticketmaster v. Tickets.com).  Second, websites can be insulated from liability under 17 USC 512(d) if the website complies with various steps.
 
2) Having said that, there are some cases suggesting that websites can, in fact, be liable for linking to infringing content.  In one case (Intellectual Reserve v. Utah Lighthouse Ministry), the linking website was allegedly "contributing" to the infringement committed by the user when he/she downloaded the infringing content. 

In another case, streaming video was deemed an infringing display of the video (Live Nation Motor Sports, Inc. v. Davis).  And in some sense, the Napster case involved liability for linking to infringing content. 

Finally, there’s the Universal City v. Remeirdes case, which held that linking to DeCSS violated 17 USC 1201 because the link constituted "trafficking" in illegal technology.
 
3) While there are no clear rules about liability for linking to infringing content, many of the cases appear to turn on the good faith of the linking site–i.e., if the site clearly is designed to facilitate infringement, courts will be very unlikely to use legal formalities to protect the site.
 
4) On that front, site EULAs or disclaimers trying to claim ignorance about linking to infringing content have virtually no legal effect.

 

Is Linking To Pirated Content A Liability?
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  • toniyoo

    I invite you to send the following message to Viacom press@viacom.com and to convince friends to do the same:

    http://www.toniyoo.com/viacom.html

  • T Miller

    This is the same as selling bootleg DVDs. If your friend has a bootlegged DVD and you sell it to someone else, and you had no part in the actual “Bootlegging” of the DVD, you’re still liable for trafficking, even if you only SUSPECTED that the DVD was illegal. If you’re not sure that the SouthPark videos (or whatever else) are “legal” posts, as a reseller/reposter, it’s your responsibility to find out. Ignorance of the law is no excuse. It’s the same as selling stolen goods, even if you didn’t actually steal them. That’s why pawn shops are required by law to take certain steps to insure that they are not receiving/reselling stolen goods. Why is this so hard to understand? Because…crime through the internet, for whatever reason, is always glossed over in favor of the advertiser or the entity who stands to make the fortune.

    • Mark Malcom

      Selling bootlegged DVDs? Allsp.com isn’t selling a thing. It is a free service. When you sell a bootlegged DVD you hand over the actual file. Allsp.com does host these files so in turn Allsp.com doesn’t give or sell the show.

  • lennonsaves

    “Kyle: He beat us. Because all this time we’ve been so caught up with how to protect our music that we forgot to just play.
    Lars: But why play if we’re not gonna make millions of dollars.
    Kyle: [turns around and addresses the crowd] Because that’s what real artists do. People are always gonna find a way to copy our music and swap it for free. If we’re real musicians, then we should just play and be stoked that so many people are listening.
    Stan: [joins Kyle and faces the crowd] Beside, maybe our sound would have gotten downloaded for free, but if they were good songs then people still would have bought tickets to see our band in concert. [shots of Rick James, Ozzy, Britney and two other acts.]
    Kyle: From now on, MOOP isn’t about money. MOOP is about music! We’re not striking anymore! Who’s with us?! [grins, but gets no response]
    Britney:…We’re just about the money.”

    I quote here from the episode called Christian Rock Hard, and I quote not only because it’s funny as hell, but also because it makes a lot of sense.

    From what I understand, the creators of South Park do not have a problem with their show being downloaded. Maybe not from a legal standpoint, but surely from a moral standpoint they are the people to listen to.

    When I hear of copyright laws, it reminds of children in school who refuse to share. All the people who watch the show online want to do is watch the show.

  • Chris Tew

    There is no doubt that AllSP will lose if taken to court. Especially in the UK which doesn’t even have safe harbour laws to protect.

    AllSP’s comparison to Google is far fetched. Google has a legitimate purpose and if it links to infringing content and is informed by the copyright holder via a DMCA takedown notice it will take them down. You can see them on the CHilling Effects website.

    That’s not to say the law is a grey area and can’t be challenged. But a site like AllSP does not stand a chance at fighting it. That’s why when QuickSilverScreen (a site like AllSP) was challenged the EFF would not help it and said it is probably illegal.

    More here:
    http://www.webtvwire.com/linking-to-infringing-content-is-probably-illegal-in-the-us/

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