Is Linking To Pirated Content A Liability?
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?|
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.