Is Embedding a YouTube Video Infringement?

Written by Frank Smith

Thursday, July 5. 2007 at 10:48 AM EDT Post a comment

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Ronald Lewis was sent a cease-and-desist letter requesting that he remove embedded YouTube videos of the musician Michael McDonald from his blog. Lewis didn't upload the videos onto YouTube. All he did was copy and paste the html link YouTube offers its users to embed the videos on their sites. 

Lewis, a self-employed blogger, also claims to have known Michael McDonald for 10 years. Apparently, no one told McDonald's lawyers that. 

Recently, the MPAA filed a lawsuit against Peekvid and YouTVpc.com, two sites that index links to streams of full-length movies and TV shows hosted on other sites. Part of the MPAA's case was that Peekvid and YouTVpc generate revenue either from ads or PayPal donations to keep their respective sites running. Why should they make money to support themselves off of (however directly or indirectly it may be) material that infringes on the copyright holders?

Ronald Lewis doesn't stand to profit from embedding these videos. Nor has he created an entire site devoted to aggregating links to other soft rock popstars with a web presence. If YouTube provides the links to embed videos, shouldn't YouTube then be liable for making sure that it's content does not infringe upon someone's copyright first?

Since its inception, YouTube has hosted copyright infringing videos. That's really the site's greatest draw, much as its homepage might allege that it's all video bloggers creating skits or sounding off on the issues of the day -- everyone knows that YouTube is where you end up after wondering what Michael McDonald is up to lately.

If I were a lawer (and I'm not, but I did ask a corporate lawyer friend about this, who also asked to remain anonymous) what the real question of embedding videos comes down to. Part of the problem is determining whether or not hosting a YouTube link can be considered a copy.

According to 17 U.S.C. 106 (2007), copies are:

material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in with the work is first fixed.

So, that said, according to my lawyer friend:

I think if you had a smart lawyer arguing for you, you could convince someone that a hyperlink isn't a copy - a copy has to be a fully contained reproduction of a work that only requires a player of some kind to display the work. In this case, if youtube goes down or they remove that video or your internet connection gets cut off, your hyperlink isn't something in which "a work is fixed...and from which the work can be perceived." It's just an address where you know a guy who shows pirated video...

 

So I guess your best argument here would be that you're not 'showing' it, you're just telling people where they can find it. Still, it sure looks a lot like you're showing a copy of it.