The Lawsuit That Could Change Video Embedding As We Know It

Over at Ars Technica, Tim Lee brings news of a disturbing lawsuit, now supported by the Motion Picture Association of America, that could set a legal precedent that embedding copyright video, rather than hosting it, counts as copyright infringement:

“Although there is nothing inherently insidious about embedded links, this technique is very commonly used to operate infringing internet video sites,” the organization writes. “Pirate sites can offer extensive libraries of popular copyrighted content without any hosting costs to store content, bandwidth costs to deliver the content, and of course licensing costs to legitimately acquire the content.” The MPAA also notes that embedding can enable sites to monetize infringing content by surrounding it with ads…

Numerous websites embed content from third parties they have not personally inspected. Under the theory articulated by Grady, and supported by the MPAA, these websites would be responsible for this content, exactly as if they had stored it on their own servers. This could create a serious disincentive for sites to allow users to post embedded content, hampering the convenience and user-friendliness of the Web

I, and the rest of my colleagues at ThinkProgress (not to mention our peers elsewhere on the internet), would have to dramatically reassess the way we do business, were this precedent to become law. Embedding is an elegant tool for journalists, and a great convenience for readers. It lets us write posts and stories that have a neat flow to them, framing a piece of content, letting the reader consume that content, and then move on to our analysis all without forcing them to click away, perhaps never to return. Sure, it keeps people on our site and lets us make money, but it’s also a convenience for the reader that provides a coherent consumption experience.

If this legal precedent is established, it would create a hugely complex situation. There’s a lot of content that the copyright holders would like to see widely embedded and distributed, whether it’s move trailers, music videos, campaign ads that no one actually intends to spend money to air but they would like to be seen, speeches, etc. That desire isn’t going to disappear if a new legal regime governing embeds comes in place. And that creates a terrific problem for both people who want their content embedded and those of us who need to embed a wide variety of content to do our jobs. Given the huge amount of content out there, and the large number of vectors through which it’s made available, it’ll be extremely difficult to comply with a new regime if there’s no clear way to tell if the content’s licit or not. And without that clarity, media outlets might be less willing to distribute even licit content if they can’t clearly document its provenance. That skittishness could prevent transmedia campaigns like the Peter Weyland TED Talk that’s being used to promote Ridley Scott’s Prometheus, where video is meant to appear sui generis rather than clearly coming from a studio, from taking off, which would be a loss both for the content producers themselves, and for the people who would enjoy that content if it was distributed to them.

Given the fuzzy, burdensome precedent this lawsuit could set, I’d like to see the clear numbers that explain why the potential use of embedding for intentional copyright violation is so harmful that it justifies upending the legitimate use of embedding for the rest of us.