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EU High Court Rules that Embedding a Video is Not Copyright Infringement (Except When it IS)

d2448a9938c648598ecc6e75c0485e5b-800[1]In its quest to generate more billable hours for attorneys, the European Court of Justice ruled last week that Europeans  might not have broken copyright law by embedding a Youtube clip from their favorite show in a blog post.

TorrentFreak broke the news late last week that the ECJ had ruled that a common every day activity, embedding Youtube videos, did not count as copyright infringement. As they described the case:

The case in question was referred to EU’s Court of Justice by a German court. It deals with a dispute between the water filtering company BestWater International and two men who work as independent commercial agents for a competitor.

Bestwater accused the men of embedding one of their promotional videos, which was available on YouTube without the company’s permission. The video was embedded on the personal website of the two through a frame, as is usual with YouTube videos.

That sounds like something we do everyday, right? Unfortunately, while the facts of the case are simple, the actual ruling is anything but.

IPKat, a law blog which everyone in publishing news should follow, weighed in on this story on Monday. They noted that the ruling wasn’t specific enough, and that it didn’t say that all types of embedding was okay:

This means that embedding videos which are freely available on, for example (and is it was the case here) YouTube, does not constitute an infringement of the right of communication/making available to the public if the work concerned is neither directed at a new public nor communicated by using specific technical means different from that used for the initial communication.

This said, it remains questionable whether embedding copyrighted videos would never be tantamount to copyright infringement, “even if the source video was uploaded without permission of the right owner”.

If you’re wondering why this an issue, ask yourself when you last saw a Youtube clip of a tv show embedded on a website.

I saw one last week when a blogger I follow posted a review of an old tv series. The blogger wasn’t in Europe, but it is still a reminder that people regularly casually infringe without realizing it.

Or at least that’s one way to look at it. Depending on where you are, those short clips might not be infringing, even if they are uploaded without permission. In the US, those clips would arguably be covered under a fair use exception, but I am uncertain of whether the clips would be covered under similar statues in Europe.

On a related note, this is not mentioned in the ruling or the coverage but I for one would be interested in a ruling on Gifs. Many people have moved from embedding videos to embedding short animated Gifs on their site. Oftentimes the Gifs are generated from video clips which may or may not be infringing (it depends on where you are).

I would like to see both those questions answered, if only to scratch an intellectual itch. Wouldn’t you?

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Craig October 28, 2014 um 5:31 pm

Why isn’t this covered under YouTube’s license agreement with the uploader? When a user uploads a video, doesn’t YouTube require them to give a license that would permit the video to be displayed anywhere a YouTube player is embedded?

Nate Hoffelder October 28, 2014 um 5:34 pm

We’re talking about circumstances where the uploader doesn’t necessarily have the right to upload.

irtjb October 28, 2014 um 10:20 pm

AS regards GIFs, I assume it would depend on where they are stored, i.e., on your server or on some third-party remote server, since they ruling you quoted says "if the work concerned is neither … nor communicated by using specific technical means different from that used for the initial communication". If some third party already addresses everybody on the Internet to view some GIF they host, then somebody else who links to that GIF and thus embeds it on his page may not act as an infringer, if he does not use own technical means to communicate the content by, e.g., hosting an own copy of the infringing file. Not a lawyer.

irtjb October 28, 2014 um 10:34 pm

Oh, and regarding the being "directed at a new public", I read that as saying that, if some third party only makes that infringing GIF available to members of some closed forum, although possibly everyone who knows the GIF’s URL could access it, embedding that "secret" content from that remote server on your own page by using the non-public URL would count as addressing a new public, thus making you an infringer.

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