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Corporate Counsel Connect collection

December 2014 edition

CJEU ruling: Embedding copyright-protected content without permission isn't infringement

Jeremy Byellin, JD

Jeremy ByellinSince its entrance into the world of widespread public use, the Internet has repeatedly presented challenges for intellectual property law, which was completely unprepared for the broad new channels of communication offered to virtually any individual with access to a computer.

Of course, one of the most recurring conflicts in this regard is the protection of IP by rights holders against any number of entities alleged to have infringed on those rights through some use of the Internet.

And as the Internet continues to evolve, this tension becomes more complex: where early disputes revolved around file-sharing and unauthorized downloads of copyrighted material, today's copyright clashes involve issues such as liability for link embedding.

Case background

"Embedding" is the placing of external content (usually videos, but it may also be images or audio) into one's own website. The most common types of embedding today is done with YouTube videos, where a user will display video content on his or her own website using code provided by YouTube, but the video is not hosted by the website owner; it is being streamed from YouTube.

But what happens if the owner of the video doesn't explicitly authorize that other individual to embed it on his or her website? Is that copyright infringement?

According to a ruling last month from the Court of Justice of the European Union (CJEU), it is not.

The case involved a dispute between a water filtering company, BestWater International, and two men who work with a competitor. One of BestWater's promotional videos was available on YouTube (apparently, without the company's permission), and the two men embedded on their own website to disagree with a statement made by the video.

The CJEU ruled that the embedding was not copyright infringement (so long as it was not modified and not "communicated to a new public" (as dictated by the EU Copyright Directive)). It didn't even matter that the original video was uploaded to YouTube without the company's permission; the embedder is still not liable for copyright infringement.

Where copyright law is heading

You may be wondering what relevance a European decision may have for U.S. law. But the nature of copyright law is that it is based largely on treaties such that the law is relatively uniform across multiple jurisdictions. In other words, U.S. copyright law has many similarities to the copyright law of other Western nations.

Accordingly, such a ruling may be indicative of the direction that copyright law is taking generally – especially in light of a ruling from two years ago out of the U.S.'s own Seventh Circuit, Flava Works v. Gunter.

Flava Works involved porn producer Flava Works suing MyVidster, "a social video sharing and bookmarking site." Flava Works (as well as its amicus the Motion Picture Association of America) argued that linking and embedding are copyright infringement, a contention that the appeals court, in an opinion by Judge Richard Posner, soundly rejected. Posner's opinion is, unfortunately, not entirely clear on its exact legal reasoning, but it is unmistakable in its holding that links and embeds are not infringement, even where they link to content that is infringing.

This newest ruling from the CJEU seems to indicate that courts will follow the same path as Judge Posner in not finding liability simply from embedding content from another source.

Implications for your organization

If this turns out to be the case, then what implications are there for the multitude of streaming websites that link to unlicensed, copyright-protected content – yet do not host any themselves? That may be the next issue to be tackled by courts, since IP rights holders have been routinely targeting these sites from infringement actions.

It clearly remains to be seen how this area of law will unfold, but given the prevalence of these types of disputes in the Internet age, we likely won't have to wait long for the next ruling.

About the author

Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.