The Law and Propriety of Posting YouTube Links:
In response to yesterday's post including a link to a YouTube clip of a jazz performance, commenter "Siona Sthrunch" contends that such posts violate copyright law; are hypocritical; undermine the credibility of the blog; and even undermine our commitment to the United States Constitution:
First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is "probably not." The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.
The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable. First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.
Given that, I don't think my linking to the file is a "material" contribution to any infringement. Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don't think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity. Do I or should I have that?
Here's my relevant state of mind. First, I'm pretty sure Capitol Record owns the copyright to the clip. When I first saw the clip on YouTube a few months ago, I recognized the performance from the CD I have of One Night With Blue Note (an authorized copy, natch) and figured there must be a DVD out there, too. I then found the DVD and purchased it from Amazon, and indeed can confirm that it's the same performance. I'm also guessing that the posting was not authorized: The file was posted by a user with the screenname "drummer123," who has not posted anything else on YouTube, and I doubt Capitol Records would post a clip in that way.
I also doubt that most uses of the clip would count as fair use, given that one full song (out of a 10-or-so song DVD) is posted. On the other hand, fair use is an inherently murky four-factor test, and it depends in part on factual settings that I don't know. I don't know how many people are following my link and in what circumstances. My jazz posts usually draw about 2 comments (other than those about copyright infringement), and I don't know how many folks will click on the link and watch enough of the clip to be clearly beyond fair use. As I understand it, I need to know (or being in a position where I should know) that I am actually causing copyright infringement to occur to be liable for contributory infringement. See Perfect 10 v. Amazon, 487 F.3d 701, n.13 (9th Cir. 2007). Is my state of mind enough to establishing the knowledge requirement of contributory infringement liability? I've looked at a bunch of the cases, and I'm not really sure. It might be, but I'm not sure.
In sum, I think I'm probably legally in the clear because I don't think the link to such a publicly and widely known clip is a material contribution to infringement in those circumstances. And if it is, there's also a debatable issue of if I have the requisite knowledge to be liable. As I said, though, this is not my area. I didn't mean that as false modesty: Seriously, this ain't my area. (I follow criminal copyright, but contributory infringement is an issue of civil copyright liability rather than criminal copyright law.) So if I'm wrong, let me know.
Finally, am I being hypocritical by posting these links, apart from the legal questions? And what about the VC's commitment to the United States Constitution, and to the Republic for which it stands, E Pluribus Unum? Here, I think I'm in the clear, too. I don't think I'm being hypocritical, as I don't think I'm somehow disrespecting Capitol Records' rights. My post to the YouTube clip included a prominent link to where readers can purchase the DVD, and it highly recommended the DVD, as well. I myself have purchased authorized copies of the music twice: first on CD, and then on DVD. Given that, I don't think I'm being hypocritical by somehow disrespecting the notion that authors and their agents should receive compensation for their works.
And what about the Constitution, enacted by We the People to form a More Perfect Union? To be candid, I don't see how this issue implicates respect for the Constitution. Yes, the copyright laws were enacted pursuant to the Constitution's grant of authority found in the Copyright Clause. But every federal law was enacted pursuant to some affirmative grant of power found in Article I. (Granted, the courts often don't act like it, but I'm tellin' ya, it's totally true.) So compliance with copyright laws doesn't really raise a question of respect for the Constitution, at least unless we want to take the view that compliance with any federal law raises such a question. In any event, given that I don't think my link violates the copyright laws, I am happy to say that the Constitution is getting my full respect either way.
As I've said many times, everyone knows, or should know, that lawyers posting on Volokh are effectively immune from any copyright suit. It's much too expensive to litigate against a bunch of lawyers. Kerr can freely post from now till doomsday and never fear paying any monetary penalties.So is Strunch correct that I am guilty of "continual copyright infringement"? Is he right that I am a hypocrite because I am an author trying to profit from the sale of copyrighted materials? (Which reminds me, wouldn't a Computer Crime Law casebook make a wonderful Xmas present? Fun for the whole family!!!) And is he right that posting YouTube links "weakens the blog's stated commitment to the constitution"? These are three pretty serious accusations — and ones "Strunch" and others have made before, at least in some form-- so I thought I would take a closer look.
The only "penalty" the blog suffers from its hosting of Kerr's continual copyright infringement (he posts these kinds of videos periodically) is that it weakens the philosophical underpinnings of the blog's stated commitment to the rule of law and of the constitution. Because Kerr and Volokh both financially benefit from copyright enforcement - seeing as how they both have books that they most emphatically do not put in the public domain - this also makes Kerr's copyright infringement fairly hypocritical.
Is this clear? Even though noone will sue Kerr (or Volokh for that matter), when Volokh turns around and tries to argue that "the First Amendment protects the Phelps" or that "the Second Amendment protects the individual right to bear arms" he loses credibility. If he can fudge on the copyright clause of the constitution to gain readership, why shouldn't he fudge on other aspects?
First, let's examine the question of substantive copyright law. Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is "probably not." The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, "One infringes contributorily by intentionally inducing or encouraging direct infringement." Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.
The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I'm probably not liable. First, I don't think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for "cantaloupe island" and this clip is the first thing that pops up.
Given that, I don't think my linking to the file is a "material" contribution to any infringement. Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don't think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
Second, I'm not sure I have the knowledge required for contributory infringement. The cases here are super-murky, but they seem to suggest that "knowledge" is not satisfied by a decent likelihood, but rather appears to require a pretty bright "red flag" showing that it is essentially certain (in light of the uncertainties of ownership, fair use, and the like) that conduct is leading to unlawfully infringing activity. Do I or should I have that?
Here's my relevant state of mind. First, I'm pretty sure Capitol Record owns the copyright to the clip. When I first saw the clip on YouTube a few months ago, I recognized the performance from the CD I have of One Night With Blue Note (an authorized copy, natch) and figured there must be a DVD out there, too. I then found the DVD and purchased it from Amazon, and indeed can confirm that it's the same performance. I'm also guessing that the posting was not authorized: The file was posted by a user with the screenname "drummer123," who has not posted anything else on YouTube, and I doubt Capitol Records would post a clip in that way.
I also doubt that most uses of the clip would count as fair use, given that one full song (out of a 10-or-so song DVD) is posted. On the other hand, fair use is an inherently murky four-factor test, and it depends in part on factual settings that I don't know. I don't know how many people are following my link and in what circumstances. My jazz posts usually draw about 2 comments (other than those about copyright infringement), and I don't know how many folks will click on the link and watch enough of the clip to be clearly beyond fair use. As I understand it, I need to know (or being in a position where I should know) that I am actually causing copyright infringement to occur to be liable for contributory infringement. See Perfect 10 v. Amazon, 487 F.3d 701, n.13 (9th Cir. 2007). Is my state of mind enough to establishing the knowledge requirement of contributory infringement liability? I've looked at a bunch of the cases, and I'm not really sure. It might be, but I'm not sure.
In sum, I think I'm probably legally in the clear because I don't think the link to such a publicly and widely known clip is a material contribution to infringement in those circumstances. And if it is, there's also a debatable issue of if I have the requisite knowledge to be liable. As I said, though, this is not my area. I didn't mean that as false modesty: Seriously, this ain't my area. (I follow criminal copyright, but contributory infringement is an issue of civil copyright liability rather than criminal copyright law.) So if I'm wrong, let me know.
Finally, am I being hypocritical by posting these links, apart from the legal questions? And what about the VC's commitment to the United States Constitution, and to the Republic for which it stands, E Pluribus Unum? Here, I think I'm in the clear, too. I don't think I'm being hypocritical, as I don't think I'm somehow disrespecting Capitol Records' rights. My post to the YouTube clip included a prominent link to where readers can purchase the DVD, and it highly recommended the DVD, as well. I myself have purchased authorized copies of the music twice: first on CD, and then on DVD. Given that, I don't think I'm being hypocritical by somehow disrespecting the notion that authors and their agents should receive compensation for their works.
And what about the Constitution, enacted by We the People to form a More Perfect Union? To be candid, I don't see how this issue implicates respect for the Constitution. Yes, the copyright laws were enacted pursuant to the Constitution's grant of authority found in the Copyright Clause. But every federal law was enacted pursuant to some affirmative grant of power found in Article I. (Granted, the courts often don't act like it, but I'm tellin' ya, it's totally true.) So compliance with copyright laws doesn't really raise a question of respect for the Constitution, at least unless we want to take the view that compliance with any federal law raises such a question. In any event, given that I don't think my link violates the copyright laws, I am happy to say that the Constitution is getting my full respect either way.
"[Congress shall have Power t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" U.S. Const., Art. I, Sec. 8, Cl. 8.
The Framers knew that there were other forms of artistic expression besides writing: painting, sculpture, music, theater, etc. Yet the only artistic venture the Constitution protects is "Writings". If the framers had wanted to protect other artistic vendors, they certainly could have added them into the IP Clause. Since the music performance is not a Writing, federal copyright law should not cover it absent a constitutional amendment. Hence, Prof. Kerr's link is perfectly constitutional and should not run afoul of any federal law.
I realize, of course, that this isn't current copyright, but it seems to me the right way to take the text of the clause in the context of the time.
It depends who posted it and in what setting. I would really like to have parts of it to be posted online, as I think I can get sales if excerpts are posted and people can see what the book is like. But the copyright is owned by west, not me, and I haven't approached them about this.
I'm curious: Can you articulate why would it make me hypocritical if there were a version of this that I would object to?
A youtube clip of one song, I should think, pretty clearly makes a purchase more likely.
- Alaska Jack
I'm curious. You "link" to the YouTube clip, but the clip itself is stored on some YouTube server. The "link," however, plays directly from this blog. Is this different than (1) a link that opens a new YouTube window (requiring the additional step of the user clicking "play" from YouTube's website)? If so, why?
I think we'll all agree that it is different than, for example, (2) a blogger providing the following instructions:
So ... is the embedded YouTube link more similar to (1), or is it more similar to (2)? Does copyright law have anything to say about this?
"The Framers knew that there were other forms of artistic expression besides writing: painting, sculpture, music, theater, etc. Yet the only artistic venture the Constitution protects is "Writings". If the framers had wanted to protect other artistic vendors, they certainly could have added them into the IP Clause. Since the music performance is not a Writing, federal copyright law should not cover it absent a constitutional amendment."
In 1789, what other form of artistic expression existed that the founders might have considered protecting? I don't believe they could have considered protecting performances as there was, at the time, no way for a performance to be recorded and reproduced. Likewise, I don't think that the failure to explicitly protect paintings and sculpture can be assigned much meaning. Given the technology of the late 18th century it is reasonable to assume that the nature of these arts was sufficient protection in itself.
Also note that even if a recording of a performance does not infringe the copyright to a recording because there is no constitutional basis for the protection, it might infringe the copyright to the underlying composition, which surely qualifies as a "Writing" and is, therefore, legitimately protected.
I really can't offer much about the question of the thread -- do the links violate copyright law. It does seem, though, that if they do violate the law it's pretty trivial infringement. Akin, perhaps, to the violation inherent in whistling the tune while riding the subway.
Great question; I don't know of any cases on this. Does anyone else know?
Orin
Inasmuch as Prof. Kerr hasn't said that someone who posted a bit of his work to a website MUST first get his permission, you've failed to identify a hypocrisy. There may be some things for which he would like to be consulted (e.g., a very choppy excerpting that may give a false impression of what he is saying), and some things that he would not want done at all (e.g., a full copy of the book posted online), and probably some to which he would be indifferent (having some pages available on GoogleBook).
Incidentally, Prof. Kerr, do you know if West is blocking Google from putting up pages of any West book?
I don't know. Although it would be great to have pages on GoogleBook.
The fact that the RIAA has a large staff of investigators and spends much time and effort tracking down copyright violators should reassure linkers that the copyright owner's agents are making an effort to prevent unauthorized usage. If Orin had linked to a bootleg site with high quality unauthorized MP3s then there would be grounds for chastising him, but that is obviously not the case.
Perhaps, the detractors are either disgruntled that your blog doesnt focus so much on their area of law or there is some other hidden reason for the ridiculous accusations? And i think conflating posting youtube videos with supporting the erosion of the constituion and the very foundations on which our society is premised is a ridiculous - to say the least- argument indeed.
Its your blog to do with as you wish. Keep on posting the music! If the detractors dont like it, they can read someone else's blog and bitch at them. Your youtube music posting conspiracy to undermine America hasn't succeeded yet, so they are presumably free to do so :)
If West is blocking GoogleBook, you ought to see if West will set up a site for your book as they have done for other legal textbooks, and then they can provide excerpts on the site they control.
I don't know of caselaw regarding whether an embedded link is more likely to create liability than a regular hyperlink; here's a discussion of the issue. However, if Prof. Kerr linked to the video on a site that didn't want him to link to it directly (preferring that he instead direct people to the site's front page), he could be forced to remove the link.
In certain contexts, you would object to YOUR book being freely distributed, without permission. Therefore isn’t it entirely possible that the owners of the music video might object to your free distribution THEIR content? The point is you have no idea.
Your hypocrisy lies in the fact that you are distributing someone else’s content, without permission- something you might object to if you were on the other end.
Orin, you’re a brilliant guy who I respect a lot. But I guess I’m a little perplexed that you don’t see the hypocrisy of a published author posting someone else’s content without permission. BTW- hypocrisy isn’t necessarily a legal issue like some here are trying to make it.
We can find out the answers if you'd volunteer to be a test case. Why not file for a declaratory judgment of non-infringement? :)
Also, how would you respond to a DMCA takedown notice from Capitol Records?
I don't think you understand the complaint here - no one is making a normative case against OK's post, just the technical note that he is likely engaging in contributory copyright infringement and is therefore liable to statutory damages. Capitol Records isn't going to actually sue him, so this liability is purely theoretical but it exists.
Citation
The copyright holder has the exclusive right to "publicly display" a copyrighted work. When you create a blog, a virtual place open to anyone, that allows people to view a copyrighted work, you are publicly displaying that work. You are a direct infringer.
Incidentally, direct copyright infringement is essentially a strict liability tort. So your willful blindness to infringement isn't going to help you either.
If you lifted this from the pleadings in my case, I'm going to sue for infringement.
Perfect 10 v. Google, building on Kelly v. ArribaSoft, answer this rather clearly (in the 9th Circuit at least) as to 1) and 2). In-line linking of content is not a direct infringement in these cases, as the court grasps the technical reality that no copying is done by the intermediate website in either case. This doesn't explicitly answer the secondary infringement liability, (although it bears heavily on it by implication,) but it does answer Cold Warrior and Orin's question - courts do recognize this distinction and don't find direct liability in either case.
I love this argument about whether he has necessary mens rea: "Is my state of mind enough to establishing the knowledge requirement of contributory infringement liability? I've looked at a bunch of the cases, and I'm not really sure. It might be, but I'm not sure." Give me a break.
Kerr doesn't seem to care about copyright infringement of his work because no one really pays to read his stuff. It's not like his living is based on the ability to sell what he writes. He has the cush job of living of the tuition of lawyers-to-be.
I'd constructively suggest your "contributory" vs. "direct" analysis might be mistaken. Orin correctly limits his discussion to 'contributory' infringement as he has failed (on the Volokh website, at least - his personal PC is another matter) to commit any act of displaying OR copying - at least within the meaning of those legal terms of art. As Google v. Perfect 10 holds,
The display right is implicated - and you are helpful to highlight that, it is an often-forgotten right - but not violated by Orin's post.
The fact that Orin says he would object to certain uses of his work is not tantamount to his espousal of a rule that no-one should ever make any use of his work without express prior authorization. It sounds to me like Orin would be perfectly happy if other people treated his work the same way he treated these videos: make uses of them that seem reasonably likely not to harm the owner or violate the owner's wishes, and be willing to discontinue the use upon learning that you were wrong about this (assuming it's a use that the owner has a right to tell you not to engage in).
That said, I do think that the four factor fair use test would mitigate generally against Orin should he have posted this directly and absent the DMCA compromise process.
The four factors are:
1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.
1. The purpose is arguably criticism (in this case recommendation) so this one would probably go the VC's way. However, the use ends up being commercial - which has less protection - due to the advertising on the VC.
2. The nature of the work is clearly entertainment/art which actually mitigates against fair use. Press and scholarly work would balance more towards the VC.
3. That the clip is a whole song leans against the VC. Its low quality could help, but I still think this one slants towards the copyright owner.
4. The market test is a truly mixed bag. There doesn't seem to be a market for single song videos as yet, but at the same time, the use of the entirety of the song for free does undermine the copyright owners ability to create a market.
Now there is one place where Orin and the VC should take serious note. The owners of the underlying song may or may not have consented to the public performance under the EMI/Youtube agreement linked above. As such, the VC likely needs to take an ASCAP, BMI, and SESAC license for the VC.
http://www.ascap.com/weblicense/
http://www.bmi.com/newmedia/entry/C1168
http://www.sesac.com/licensing/internet_licensing_faq.aspx
-Gene
(Trying to forget his Emusic.com days...)
Thanks for that analysis. I agree with you on fair use. I don't think this would qualify if it were a direct posting. Re the publishers' performance right, is it established that inline linking constitutes performance? If the 9th Circuit is right that it's not display, why should it be performance?
This performance was in 1964 and 43 years is longer than I would consider any reasonable term.
But I realize that Disney has more control of Congress than I do, so my views are moot.
EI
EI
At bottom, the claim of hypocrisy seems to me that I am doing something that is in the same general category of something that in some circumstances I might not like if it were done to me. But I'm pretty sure the similarity has to be a lot tighter for something to be an example of hypocrisy.
Finally, it should be obviouss that if the record company doesn't want me to link to the clip, I would be happy to remove my link. I love Blue Note records like it's my favorite uncle; I'm not going to do something with its music that it doesn't want me to do. If you still think that shows lack of respect for the copyright, then I think we're going to have to agree to disagree.
Interesting law review article I just happen to come across today. Linked Here
November 26, 2007
Law Review Article on the Problems with Copyright
Excellent article by John Tehranian: "Infringement Nation: Copyright Reform and the Law/Norm Gap":
By the end of the day, John (a hypothetical law professor) has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges). There is nothing particularly extraordinary about John’s activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, he would be indisputably liable for a mind-boggling $4.544 billion in potential damages each year. And, surprisingly, he has not even committed a single act of infringement through P2P file sharing. Such an outcome flies in the face of our basic sense of justice. Indeed, one must either irrationally conclude that John is a criminal infringer -- a veritable grand larcenist -- or blithely surmise that copyright law must not mean what it appears to say. Something is clearly amiss. Moreover, the troublesome gap between copyright law and norms has grown only wider in recent years.
The point of the article is how, simply by acting normally, all of us are technically lawbreakers many times over every day.
Says the "Dog"
How does the Perfect 10 opus on framing square with the decision in Napster, other than "bad" litigant vs. "good" litigant?
First, let's recognize that you appear to have changed the topic. For the last few comments, you were accusing me of hypocrisy by posting this link yesterday. Now I gather you are attempting to change topics (whether because you concede you are wrong, or for some other reason -- you haven't explained) to the more general practice I have made of posting occasional links to YouTube.
Further, you seem to be changing the topic from posting links to whether, taken as a whole, I think that every link satisfied the new standard of whether every copyright owner actually approved the use based on knowledge both ex ante and ex post.
The answer to that question is no, because there are one or two links that were taken down in the period after I linked to them. I gather that in those cases, the copyright owner did in fact object, even though I did not know this at the time.
With that said, I'm not sure how your question is related to my alleged hypocrisy. It's often extremely difficult to find out who the owners are with the links I post to: most are of live concerts outside the United States, and I have no idea what the copyright situation. My general approach in light of this uncertainty is to wait until a clip has been up for a few months, giving the copyright owners a chance to notify YouTube and have the materials be taken down, and always combining links to clips with links to the Amazon page where you can buy related music (together with my recommendations).
A youtube clip of one song, I should think, pretty clearly makes a purchase more likely."
There's a historical parallel. In the 1930s and 40s, recording companies would not permit records to be played on the radio, on the theory that people wouldn't buy them if they could hear them for free. The emergence of top 40 radio in the 1950s thoroughly disproved that theory. While it lasted, though, it did have one salutary side effect: live music on the radio, which was a source of steady employment for jazz musicians. The legendary jazz clubs of 52d Street in NYC, where Charlie Parker et al. played, were located there because Radio City Music Hall is around the corner.
Perfect 10 is not about music. As such I can tell you that Harry Fox, et al. take the opinion that the use of the song is as to where one "listens" to it. As such, the framing issue is subtly different as to the song itself and not the instantiation. Whether Perfect 10 would apply to the songwriters (who are compelled by statute to license) is a much more sticky issue. I'd bet against it and would simply say that any website that is framing content with songs in it had best have a website license from the big three.
Shawn et al.:
When bad plaintiff is defined as one actively and through the use of deception promoting the illegitimate use of other's copyrighted material, yeah - the bad plaintiff issue is dispositive. If the software had shipped with the default not set to "share" that case may have gone very differently. Of course, Napster may have also been as well known as Sonique...
-Gene
It might be much too expensive for me to litigate against a bunch of lawyers if violated my copyright on something. I'm not so sure that would be true for Capital Records.
Though I suspect every one of the VC is reasonably well paid, I also suspect none of you would be thrilled to devote any significant amount of time or money defending yourself against a copyright suit in which you thought the plaintiff might prevail. Also, it might be really, really, really embarrassing to lose.
So, in this regard, your are innocent using your super-dooper lawyerly-powers to embedd youtube videos fearlessly where other non-lawyers bloggers would lay awake at nights for fear that Capital Records might sue them.
Webster defines hypocrite as “a person who acts in contradiction to his or her stated beliefs or feelings”
You seem to think that merely because a piece has been available on youtube “for several months”, that somehow you are entitled to distribute it, regardless of the owner's wishes. Although you may technically be in compliance with the DMCA, by definition, your actions are hypocritical.
Perhaps now would be a good time for a public service announcement: Don't Copy That Floppy!!!
Except he didn't. The user requested it by clicking and YouTube distributed it.
http://www.amazon.com/s/field-keywords=exlax
While I'm not sure I agree with the decision, I stand corrected.
Not so sure this is true. I know with my own situation with the discussion blog ezboard then Google search linking to it, some of the cases I read say there is some sort of command that can be typed in to prevent the Google search cache from picking up the material. (Of course my infringed copyrighted original writing was sent by a private e-mail, then published without my permission, so the infringer is the one who didn't type in the command to prevent Google search from capturing the link, and I didn't know I was infringed until I saw the Google link).
Therefore, if the source doesn't want the Google search to link and make the material public, then the copy-prevention command should be typed in by the original source and one who doesn't type it in authorizes republishing and distribution to the public, so the reasoning goes. I wonder if something similar exists for YouTube? Anyone know?
"This may be a stupid question but...Instead of arguing about this via comment posts, has anyone called the copyright holder and asked directly if they think posting a link to one of their songs in a blog is copyright infringement?" In my situation that would have been nice, but I doubt a clerk assigned to my pending cases would have wanted to basically tell me she was receiving ex parte extra judicial info about me that required her Judge to disqualify.
The fact a johnny-come-lately infringer tries to conceal the infringement by slapping its own fraudulent copyright notice on the infringed work and derivative works cannot serve to effectuate theft of the original earlier-in-time copyrighted written work.
I'm just sayin...
Orin reasons that because this material is posted on youtube and he recommends the DVD, provides a purchase link and purchased 2 personal copies of the DVD, that this is adequate “respect for copyright”. Orin may believe that such “respect” is sufficient but it’s NOT his decision. That decision belongs solely to the owner of the content.
Here is an example: I am willing to allow publication of my “romance novel” on any website that sends me a cheese pizza. That’s my decision. Now, suppose I send a cheese pizza to Orin’s office. Does anyone think that should allow me to publish Orin’s Computer Law book on my website?
FWIW- I am fully aware that it can be extremely difficult to determine who owns the online distribution rights to obscure jazz videos. But that difficulty doesn’t make it ok to publish such material, without permission on a commercial website.
Also this isn’t a personal attack on Orin because I believe that he has the best of intentions and simply wants to share his love of music with others. However, I believe that he should be more careful when distributing other’s material without permission. This is especially true of someone who wants to control the distribution of his own creative works.
My situation is also different because my protected works were pirated from me by identity fraud of the receiver/infringer of my protected works.
Perhaps. But I wouldn't be at all surprised if Congress were under the impression that the Commerce Clause also gives it the authority to mandate monthly colonoscopies for all American citizens.
BeerThe Commerce Clause! Is there anything it can't do?In trying to understand your argument, I wonder if we're not getting bogged down in your accusation that I am a hypocrite. It seems that your claim isn't really that I'm a hypocrite, because I'm not actually saying one thing and doing another or violating the golden rule or anything like that. You keep trying to say I am, but it leads you make all sorts of patently false claims about my position that have no remote connection to any position I have actually made. (If you're wondering why people aren't being persuaded by your argument, I think it's because you're repeatedly misrepresenting my position and refusing to compare apples to apples and oranges to oranges.) Rather, your claim really seems to be that you think I am not being sufficiently careful with other peoples' copyrights. You think that posting a link is akin to distributing, and that we should be extremely careful before posting links. Why not just make that argument directly, rather than try to force it into a plainly unconvincing claim that my linking is somehow hypocritical? We still might not agree with your position, but it would have the benefit of being much more direct and not have to misrepresent my position.
Everyone's been pointing at contributory infringement. I think this is barking up the wrong tree. Sure, there's "infringement" by another (in theory) by everyone who downloads the html, which instructs their browser to copy a file from the YouTube server (there's the exclusive right infringement, and probably far more than one copy was made in that particular process) and then displays it in a browser (a second exclusive right). Does Orin know we're copying and/or displaying that work? Well, no, he has no idea I am specifically infringing the theoretical exclusive rights to copying and displaying, insofar as he doesn't know whether I have FlashBlock installed (I do) or even whether my proxy is filtering YouTube links (it isn't). But the harder prong is the material contribution prong. What's that prong? Is this 2600 all over again, and the "code" is the location of the YouTube file? That's a material contribution? I can find a link to that content by searching in Google, for goodness' sake. Are you seriously going to go after Google for the mere fact that their search engine reveals the content is out there? Is anyone, in the long run, really going to think that the Ditto.com/Arribasoft precedent supports that type of a theory of contributory infringement? It's the intellectual equivalent of arresting people for distribution of drugs and sale of alcohol to minors for pointing out the notorious "Skid Row" in Los Angeles to a group of tourists.
The real issue is vicarious infringement. The "infringement of another" prong is identical to contributory infringement. The "direct financial benefit" prong, the third prong, is harder to make, but there are advertisements on the site, and it is not unfathomable to believe that posting to a site such as this could have other financial benefits (such as career enhancement?) notwithstanding the more indirect nature of those benefits.
But the real rub for anyone who bothers to probe the technology is that Orin has the right and ability to control the behavior of another, by virtue of the fact that he wrote code that will run on their computer. Orin could clearly write code, for instance, that went to an interstitial page that warned the visitor that they were proceeding to potentially copyrighted content. He could also warn them not to proceed unless they have the proper rights from the copyright holder. He doesn't have to do an inline link to it. That's the ability part of that prong.
The absolute irony of the situation is that he has a right to control his visitors' behavior. Why? Because, wait for it, HE HAS A COPYRIGHT TO HIS OWN POST AND HIS OWN CODE (leaving out ideas/processes/procedures problems, which I don't think change the outcome). In other words, he has composed his own creative work. It's obviously also governed by Title 17, and all of the exclusive rights apply. He has the right to control the behavior of my computer (via his HTML) by virtue of his control of the copyright to his own creative work. By virtue of the technology, the vicarious liability question is answered--yes--he's probably vicariously liable for the infringement of his "readers."
Now, this totally ignores all copyright defenses, and there are probably a couple of doozies. You really want to argue this isn't fair use? Are you a caveman? This is a blog for law nerds, after all, and guess what? Judges are law nerds. Law clerks are law nerds. Appellate lawyers are law nerds. They love stuff like the Volokh Conspiracy. Do you think that the transformative use argument will be murky to them? This isn't Roy Orbison vs. 2 Live Crew, this is a bunch of geeky professors with thick eyeglasses revelling in their aggregated intelligence. I'd put it at a 2 SD confidence interval that an appellate court would side with the Conspiracy on this one.
1. You would require those posting your material online to receive permission.
2. You post other people’s material online without receiving permission.
3. Someone who says one thing but does something completely different is commonly called a hypocrite.
4. You say one thing (see #1) but do something totally different (see #2) therefore you are a hypocrite(see #3)
Please feel free to point out any misstatements or errors.
If you read the Copyright Act definition of display, it means "to show a copy of [a work], either directly or by means of a film, slide, television image, or any other device or process." By giving other people's computers instructions, Orin has set up a "process" that shows a copy of the work to anybody who comes to the site. That is public display.
The argument that if we prohibit Orin's instructions, we will have to prohibit all other instructions (e.g. hyperlinks or English text on how to reach a picture) is unpersuasive. It is very easy to distinguish the practical effect of an instruction that allows Orin to have a copyrighted work appear directly on his site (from the human viewer's perspective) as opposed to an instruction that tells a viewer how to go to another site to view the copyrighted work.
Sam Bayard
Assistant Director
Citizen Media Law Project
Leaving aside the question of whether mere linking is (or should be) infringement... leaving aside the distinction between framed links, non-framed links, and non-link text instructions... leaving aside the legal points and dealing only with the question of propriety:
If one believes that copyrighted works should not be distributed (displayed, performed, etc) without the permission of the owner, then one should not encourage others to obtain (view, hear, etc) copyrighted works in ways that the owner has not permitted. I think you agree with this, which is why you have waited before posting links to videos whose copyright status and owner permission you were unsure of. Where you and KJJ (and I) disagree is over whether simply waiting to see if the owner has the video taken down constitutes determining that the owner has given permission.
First, #1 is false. It's not true, as a categorical statement, that Orin would require everyone posting his material to get his permission. Remember how you said: "I’m curious about how you would feel if 10% of your Computer Crime textbook were posted on a free website without your permission." (11/26 2:01pm)? And remember how Orin answered (emphasis added): "It depends who posted it and in what setting. I would really like to have parts of it to be posted online, as I think I can get sales if excerpts are posted and people can see what the book is like." (11/26 2:19pm)?
Therefore, #1 should be revised to: "1b. You would under certain circumstances require those posting your material online to receive permission."
Second, #2 is true -- Orin does post (and in this case, for the sake of argument, we're assuming he has posted) other people's material online without receiving permission. But, as his posts have shown, it's not like he has a general practice of posting material without permission. On the contrary, he's pointed out very detailedly (11/26 4:56pm, and 11/26 5:35pm) how he limited himself to a case where he had some reason to believe the copyright holder wouldn't mind, and how in any event it's often hard to determine who holds the copyright to some of these things, and how he'd take it down if asked. (This is, by the way, about ten or a hundred times more solicitude for copyright than I show when I link to material!)
(Note, as Orin does (11/27 2:25am), that you disagree with his position and think he should respect copyright more (11/27 1:25 am). But that's a substantive disagreement with his position. And for a charge of hypocrisy, all that's relevant is whether Orin subjectively believes his own position; so all that's important now is that we correctly characterize his position.)
So #2 should be revised to: "2b. Under certain circumstances you post other people's material online without receiving permission."
Now I hope this becomes clearer. There's no conflict between #1b and #2b -- such as would satisfy your definition of hypocrisy in #3 -- unless the circumstances in #1b overlap with the circumstances in #2b. Orin just simply isn't saying one thing and doing another. (I'll give you the benefit of the doubt as to your vague definition in #3, and assume that by "completely different" you actually mean "contrary.")
Rather (to quote Orin again, 4:56, emphasis added), "the claim of hypocrisy seems to me that I am doing something that is in the same general category of something that in some circumstances I might not like if it were done to me." But "in the same general category" isn't enough -- you have to be able to literally find someone doing something that he wouldn't do if the situation were exactly the same only the identities were reversed.
Now you may believe this, so that's a valid substantive disagreement with Orin. But on KJJ's charge of hypocrisy, it's fairly clear from his remarks that Orin does not believe that "copyrighted works should not be distributed (displayed, performed, etc) without the permission of the owner," not in such an absolute form.
In fact, he's stated that before knowing whether he would mind unauthorized copying of his own book, he'd have to know more about the details, which means he has a much more nuanced view. Moreover, your blanket statement about "distribution" in all forms, where that includes not just the copying itself but also the performance (does this include me when I play it?), is quite broad, and not everyone believes that making a pirated copy is the same as viewing it once it's been created.
Moving on to the second part of your statement -- "then one should not encourage others to obtain (view, hear, etc) copyrighted works in ways that the owner has not permitted" -- it's not at all obvious that this is true. Even if all infringement is theft, and even if merely viewing something is just as bad as putting it up there, it's not clear that encouraging others to view it is also bad. Now one can take a view that you shouldn't ever participate in any aspect of all this, but this is not the law, this isn't the universally held view of what's proper, it's not Orin's view, and (not that this is relevant) it's also not mine.
You say that you think Orin agrees with your view, but really Orin agrees with a different version of intellectual property rights, which happens to lead him to take certain steps (but not others) to avoid permissionless stuff. (As I've said, this is much more than I would have done in the same situation!) As with KJJ, you're free to take a particular uncompromising view of the nature of copyright and its implications for what one should do before linking to material. But don't assume that others are painting with your same broad brush.
Suppose my neighbor painted a mural (an original work) on the wall inside his backyard such that it could not be seen from the street. Suppose he charged admission to his backyard to see the mural. Suppose I, through a clever arrangement of mirrors and lenses and tall trees overlooking his backyard, offered passers-by a free view of his mural from my front porch.
No copy has been made. Am I not however violating his display rights inherent in his copyright?
Perfect 10 notwithstanding, how is putting up on your web page a frame that displays copyrighted content any different, even if the displayed content is stored on someone else's computer?
I agree with Chico's BB. Instructions that cause a computer to display a work (in-line links) are easily distinguished from instructions that allow a human to cause a computer to display a work (non-inline links) or that allow a human to find a way to cause a computer to display a work ("go search youtube for 'miles davis live in leningrad'"). Perfect 10 is wrong.
As a further example: it would be easy to write a javascript gizmo that could suck all the content from a site (say, volokh.com) and present it to the viewer after stripping out all the ads. I could put up a web page that contained only that gizmo and my own ads. The viewer would see all the volokh.com content - minus the volokh ads, plus my own ads - without any infringing content being copied to or served from my own webserver. The javascript gizmo would pull it directly from the volokh.com servers to the viewer's web broswer. This is, basically, what the youtube embedded links do.
Per Perfect 10 I would not be violating the volohk.com copyrights. This seems wrong to me.
Yes, legalize medical marijuana.
The problem with the hypocrisy analysis is that you posted not just a link, such that the content is displayed on another page, but an embedded video. YouTube acts dubiously in hosting copyrighted content to make money by selling ads that will necessarily be displayed at the same time as the content. If you just linked to the YouTube page, you wouldn't be doing the same thing. Since you embedded the video, you are now displaying copyrighted content in a way that will necessarily display *your* ads, making VC and therefore you money. See the difference?
In fact, he's stated that before knowing whether he would mind unauthorized copying of his own book, he'd have to know more about the details, which means he has a much more nuanced view.
If he knew about the details, and didn't mind, then it wouldn't be unauthorized. You are confusing "unauthorized" with "not approved of ahead of time".
Or perhaps I'm confusing "unauthorized" with "disapproved of". So to clarify, let's discuss "copying, display, or performance that the copyright owner expressly disapproves, or has not approved and would not approve if requested". It would be handy to have a shorthand for that - I hesitate to use the term "infringing" ... could we for this discussion call it "not-nice"?
Back to syllogisms:
A) There are not-nice uses of Orin's book (i.e. that he expressly disapproves of or would if he were asked). Posting the entire book online would probably be one.
B) Putting rips from commercial DVDs onto youtube is not-nice, absent positive evidence of approval from the copyright owner (such as the agreement between youtube and EMI).
C) Condemning not-nice uses of one's own works while condoning not-nice uses of others' works is hypocritical.
D) Encouraging people to watch not-nice rips of DVDs on youtube is condoning not-nice uses of others' works.
E) Orin is encouraging people to watch not-nice rips of DVDs on youtube.
F) From D and E, Orin is condoning not-nice uses of others' works.
G) By definition of not-nice and A, Orin is condemning not-nice uses of his own works.
H) By F, G, and C, Orin is being hypocritical.
I think you (and Orin) disagree with D. While it's true that making a bootleg, selling a bootleg, buying a bootleg, copying a bootleg, and watching a bootleg are all different activities, I find it an odd ethical position to be against some of those activities but not all of them. It's wrong to photocopy Orin's book but not wrong to (knowingly) accept someone's photocopy as a gift rather than buying it yourself? It's wrong for a library to buy a photocopy but not wrong to (knowingly) read the photocopy in the library? They may be lesser wrongs, but surely they are still wrongs, no?
Under certain circumstances, including some of the circumstances described in this post, Orin’s actions are hypocritical.
This is, again, the problem with people who don't understand the technology drawing conclusions from their woefully limited experience watching television. The Internet's not a TV.
First, on my screen, there's nothing present when Orin posts that link, except a small button that will allow the YouTube flash interface to be displayed in the first place. No images or sound "played" on my computer until I took an affirmative action to display it. Has Orin infringed upon the display right now? No way in hell.
Second, I have no idea what OS you're using, but YouTube, itself, includes a "play" button that functions properly with FireFox. The YouTube movie/video does not start playing immediately. I must, on my system, press yet a second interface button to begin the clip. I actually vastly prefer this system--it eliminates the most irksome of flash advertisements. Further, I think it rather clearly shields Orin from any liability based on the display right; the user's going to be the one taking action to begin the streaming from YouTube, not Orin's code--which merely indicates the location. I think he's on solid ground on the display right, personally--and I'd love to see you challenge a computer scientist on the stand on this one. I have a pretty good idea of what the judge and jury are going to think of you.
The true source of liability in the computer/internet realm is the doctrine of RAM copies. On certain systems, a full copy of the clip is present notwithstanding the fact that the user has not affirmatively decided to display the work. Is that infringement? Reasonable people can disagree, but probably it meets the prongs of a prima facie case of infringement, as there's a full and complete (nay, identical copy) in several different places on my computer system once the HTML (or in this case, shtml) has been loaded.
The idea that you're going to try to legislate inline linking from the bench is rather amusing. If the copyright holder doesn't want to police the posting of their work online, and utilize the extremely simple DMCA takedown procedure (heck, people have written bots to do it), they have failed to avail themselves of their remedy at law, and individuals should be able to reasonably count on its availability in a conduit as a signal that normal and reasonable use of Internet technology in relation to that content is permissible. I don't remember any part of Title 17 that made you or me copyright cops, and we certainly don't have to put that hat on merely because we use YouTube as it was designed.
For eddie, insofar as you're referring to a "javascript gizmo," you're making your argument even more funny. That type of technology has existed for ages (have you ever heard of the standard Unix utilities wget and cUrl?) It's rather easy for a user to run one of those utilities, filter the incoming content, and display only that part of the site that they want to read. Does that seem wrong to you? Is that because you don't know how to do it? Would you like to ban all installations of Linux now, where that's a standard feature? Because that's where you're going.
Attorneys are like ostriches when it comes to new technology. Heck, that's why most of them have secretaries or IT staff. But there's a difference from being lazy and not bothering to learn how technology works when it's part of your job, but it's quite another to take that bias and try to construct a legal system based upon it. The second, which both you, Chico, and you, eddie, are suggesting, would be both ineffective (people would code around), and worse yet, wasteful (because people would have to bother to write that code).
If copyright infringement on the Internet really bugs you, go and ask yourself why ISP's are shielded to the extent they're conduits. Trust me, you could end infringement in a heartbeat if you targeted the large ISP's. But the content industries don't have that kind of power--the telecommunications industry is far more powerful than the content creators. So the content creators have decided to target their customers. So be it--they're reaping the heaps of negative PR that will be incident to that type of action. But don't try to rewrite a web browser in the judges' chambers because you think the content creators should beat the telcos--then you're really killing the goose that lays the golden eggs.
Fortunately I have avoided posting in those circumstances.
LL Cool Beans,
Actually, I don't think our advertisements work that way; I think our (very small) advertising revenue is based on the number of visits, and as far as I know, clicking on an embedded link is not an additional visit.
However, this discussion has left a very bad taste in my mouth. Personally, I am saddened that an exceedingly talented group of lawyers/writers/scholars can’t admit that it looks REALLY bad when they publish someone else's creative content on a commercial site without permission.
Orin and Sasha, you guys are superstars in your field and I hope you take a hard look at this and decide to do the right thing. Good luck!
As I mentioned before, I do not know if YouTube is similar to Google with respect to link blocking commands, but if Google captured pages of Orin's book that would be like Google capturing pages of ezboard (which contained the pirated reproduction and distribution of my original copyrighted work without my permission).
"Google, like other search engines, uses an automated program (called the “Googlebot”) to continuously crawl across the Internet, to locate and analyze available Web pages, and to catalog those Web pages into Google’s searchable Web index." Field v. Google, Inc., (D.Nev. Jan. 2006). Everyone seems to think this means Google is an infringer by providing Google search results and a link.
However, those who are posting the text on a website or blog have at least constructive knowledge of well-known Internet protocol, whereby granting or not granting any permission to Google to copy, place in Google search, and link the text is a simple matter of conscious choice:
"A principal way for Web site owners to communicate with Google’s robot is by placing specific instructions in “meta-tags” within the computer code (called HTML) that comprises a given page. When the Googlebot visits a page, it reads through this code. If it encounters meta-tags, it follows the instructions provided. Thus, for example, a site owner can place the following meta-tag within a page to tell Google’s robot not to analyze the page or include it in Google’s Web index and search results: 'META NAME='ROBOTS' CONTENT=”NOINDEX, NOFOLLOW”>'" Field v. Google, Inc., (D.Nev. Jan. 2006)(cit. omitted). "Web site owners can also communicate with search engines’ robots by placing a “robots.txt” file on their Web site. For example, if the Web site owner does not want robots to crawl the owner’s Web site, the owner can create a robots.txt file with the following text: 'User-agent: * Disallow: /'." Id. (internal cit. omitted)
In my situation, ezboard made the conscious choice to permit Google to copy the pages containing the evidence my own original copyrighted work had been pirated, published, reproduced, and distributed without my permission.
The only relevancy that ezboard claims a copyright on my earlier-in-time copyrighted original work pirated, published, reproduced, and distributed on and from ezboard's Discussion blog is that ezboard together with the posters are infringers. A work may not meet the minimum criteria for being covered by copyright, even if the work had been previously registered by a government or private copyright agency, when the claimed copyright is invalid as an infringment of an earlier-in-time copyrighted original work.
In my situation, Fair Use likewise cannot be claimed by the infringers due to their pirating the my entire copyrighted work, reproducing and disctributing it.
"Towanda
Member
Posts: 1045
(5/12/04 5:39 pm)
Re: All right, you twisted my arm
p.s. If anyone wants the full monty, feel free to e-mail me!
Edited by: Towanda at: 5/12/04 5:39 pm"
Source Subsequently, the "full monty" was posted on ezboard Discussion blog verbatim.
Further, the fair-use defense predicated on "parody" can only be successful when the newly created work that purports itself to be parody is a valid parody—and not, for instance, a hate or harassment violation of the Americans With Disabilities Act, which contains a statutory provision partially repealing "other federal laws" that conflict with the ADA, such as the Copyright Act and the Communication Decency Act.
Moreover, as appears in my situation with Google taking down the search results and link, if the infringer sends baseless DCMA takedown notices and otherwise abuses the copyright Act, there is recourse. e.g. EFF's suit, Diehl v. Crook some discussion HERE
I also believe as owner of the original copyrighted work, I can license Google to publish it in their seach results, but not license ezboard to publish, reproduce, and distribute it from their Discussion board.
Thus, it's not enough to point out that he's complaining about things that are "not-nice" and simultaneously doing things that are "not-nice" under your own definition of "not-nice." You have to show that Orin himself has a definition of "not-nice" (perhaps as shown by his reaction to someone's posting his own stuff) that he violates (perhaps by himself posting someone else's stuff).
Now if you can locate an identical pair (i.e., Orin does something that's the same as what he previously criticized someone else for doing), then no problem. Orin himself has given the criterion for not-nice, and all you have to do is observe that he's violated it.
But if you can't point to an identical pair -- perhaps Orin has never opined on the morality of this precise behavior; perhaps he has in fact only opined on the morality of different behavior -- then showing hypocrisy is more difficult. As long as Orin himself can produce a rational argument, which he believes in good faith, showing how the cases are distinguishable, he's immune from a charge of hypocrisy. You may think his argument is wrong and that he condones immoral behavior, but that's a substantive disagreement on the issues, not hypocrisy.
Your charge of hypocrisy depends on the statement D ("D) Encouraging people to watch not-nice rips of DVDs on youtube is condoning not-nice uses of others' works."). And as you yourself said, you don't think Orin doesn't believe D. Therefore, you think Orin is mistaken, perhaps immoral, but not hypocritical.
It's not an exact analogy, but how is that substantively different from his posting links to copyrighted material on YouTube?
The charge of hypocrisy originally appeared to be an inadvertent conflating of 'doing something I consider bad' with 'hypocrisy'. As the comments have gone on, though, it looks like this is deliberate. That's unfortunate, as it kills any decent discussion about the propriety of linking to copyrighted material.
Well, why doesn't Orin just go ahead and post excerpts to the book himself? He can provide a setting that he finds appropriate, with appropriate links to Amazon so that people can purchase the book and provide revenue to the copyright owner. If West objected to Orin posting the casebook excerpts, he could simply take them down (just the same as Youtube takes down links when the copyright holder objects).
That would seem to be perfectly fine given Orin's defense of his Youtube link. I haven't figured out why Orin wouldn't do this (given that he wants some of the casebook online), other than the general proposition that someone else (West) holds the copyright - which is exactly the same objection that others have to the Youtube link.
Anyway, I try to stay out of Orin's posts, but just found the defense quite confusing.
I have surmised there may be a difference between text and a YouTube video, due to one being text and the other being a video, and there being commands (locks) that can be typed in to prevent Google cache search results from copying and linking to text, whereas I do not know whether the video copyright holders have available/have typed in a similar command (lock) to prevent reposting on YouTube or even if YouTube is using a searcg robiot similar to Googlebot. No one has really wanted to answer this question.
There would be no need for the copyright owner to ask that the copy be taken down if the website or blog originating the copyrighted work simply undertook the thresshold effort of typing in the command to prevent copying and linking. Moreover, it seems to me there is not only an implied license being issued when the website or blog originating the copyrighted work consciously chooses not to type in the locking prevention command, but a waiver as well.
I also don't see any valid argument that would sustain the accusation Orin is a hypocrit. And it seems to me the faux-issue Orin is a hypocrit simply means (1.) disagreement with the problem Orin posited, (2) a misunderstanding of copyright law and the issues actually posed, and (3) a type of ad-hominem attack for lack of any other rational/logical/valid argument.
I would urge anyone who doesn't understand these issues to either take a class in Copyright Law, a fascinating and worthwhile endeavor, or do more research on the narrower subject of Google/YouTube linking and copyright infringement.
You seem to be thinking of things like user-side proxies, where the user has decided to strip ads (and so forth) from the content they view. I'm not talking about that kind of thing at all. I'm talking about a site publisher causing the viewers' browsers to pull content from the original site and display it with modifications not authorized by the original site owner - without the viewers' knowledge or action beyond visiting the "pirating" site. The viewers would simply see the pirate site, and it would appear to them to contain the original content and the replacement ads.
The copyright owner, upon going to the site, would be understandably miffed at the "pirate" site. But they would have no recourse under Perfect 10, as the data was never copied to or from the "pirate" servers.
Yes, anyone could get a copy of the content sans ads themselves (using wget / curl / privoxy / proxomitron / insert-favorite-tool-or-scripting-language-here), and doing so would certainly not violate copyright. But I think there is a legitimate difference between providing instructions that a person could use to display copyrighted content and providing code that causes a computer to display the copyrighted content without any human interaction. It comes down to intent. In the first case the intent lies with the viewer, to whom the original copyright owner is providing the content (and who can therefore display it to himself in any way he pleases). In the second case the intent lies with the pirate, who intends to display it to someone else (the viewer), a privilege that he does not have.
Thus, it's not enough to point out that he's complaining about things that are "not-nice" and simultaneously doing things that are "not-nice" under your own definition of "not-nice." You have to show that Orin himself has a definition of "not-nice" (perhaps as shown by his reaction to someone's posting his own stuff) that he violates (perhaps by himself posting someone else's stuff).
I suspect this definition of not-nice will do the trick nicely: "distributing, displaying, or performing copyrighted content (other than fair use) where the copyright owner has either explicitly denied permission or would explicitly deny permission if asked". I contend that the DVD rips posted on youtube fall into that category, Orin's reasoning of "well, they haven't taken them down yet so they must be okay with them being there" notwithstanding.
Granted, there's a further obstacle to the charge of hypocrisy here - Orin is of course not posting the rips himself, nor hosting them, nor (arguably - see other thread) displaying them, etc etc. He is only providing links to them and encouraging others to view them.
The corresponding scenario for his own works would be as follows: First, assume he wrote a book that he did not want published online in its entirety. Second, assume that right there in the front of the manuscript he put a copyright notice, the words "all rights reserved", and a note saying "Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000." Third, assume that despite all this someone did in fact publish the entire book online. Fourth, assume Orin did not know about the online publication. Fifth, assume someone else (not the original infringer) posted a review of the book on their blog saying (with relevant links) "Hey, Orin's book is really cool - here's where you can download it for free, or of course you can buy it from amazon."
Would Orin be displeased with the blogger for providing a link to someone who had violated his copyright?
Obviously, when Orin found out about the copyright violation, he would complain to whoever was providing the book for free and have it taken down. But the question is about his view of the blogger's actions, not the copyright violator's. Would he condone what the blogger did or condemn it?
Supposing he might shrug and say "well, it was no big deal, no real harm done..." ... if the blogger continued to do it, every Sunday, would Orin continue to have no objections to the blogger's actions?
I believe that is the identical scenario to what Orin has been doing, and I believe that is the test for hypocrisy. If Orin would condemn the blogger, he is being hypocritical, because he is doing the identical thing himself. If Orin would have no issue with what the blogger is doing - not even at the level of merely wishing he would stop without actually doing anything about it - then I'll concede that the charge of hypocrisy is without merit.