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MPAA Doubling Down, Alleges Video Embeds are Infringement

Unchastened by the humiliating failure of SOPA and PIPA last January, the MPAA has doubled down, reentering the fight to ruin the Internet from a decidedly different angle; taking a break from their usual task of being inscrutably censorious to anything aimed at an audience over age 10, by siding with the porn industry.

At issue is a ruling from the District Court for Northern Illinois in the case of Flava Works, Inc v. Gunter. Flava Works - and you might want to cover the kids eyes for this - produces 'adult' movies featuring gay, 'ethnic' scenarios. Marques Rondale Gunter owns myVidster, a social video bookmarking site on which approximately 50 percent of content is of the extremely NSFW variety. Flava alleges that myVidster infringed on its copyrights by embedding videos, and unsatisfied with myVidster's response to their DMCA takedown notice, sued them. Last July, the court ruled in favor of Flava, holding that myVidster was not only responsible for users who embedded disputed content even if they took action to discourage and/or stop it, but that even something as innocuous as posting links and embeds constitutes infringement.

Gunter argued that the law protects activity like linking and embedding (since each activity makes use of tools readily available as a part of basic Internet use); instead, the policy for myVidster was to ban people who hosted unauthorized content while only warning those who link to or embed proscribed content, eventually removing them if they failed to comply. The presiding judge didn't even seem to consider that position, deeming Guntar's approach 'willful blindness'. That's an extremely draconian interpretation of DMCA regulations, and if it sounds familiar, it's because essentially in line with the more odious parts of the almost wholly evil SOPA and PIPA bills. Naturally, Gunder appealed this ruling, which is currently set to be reviewed by the 7th Circuit Court of Appeals.

Last November, two separate briefs opposing this ruling were filed with the 7th court, one by Facebook and Google, the other by the Electronic Frontier Foundation and Public Knowledge. A big deal to be sure, but these briefs were filed just as it looked as though both SOPA and PIPA would pass without challenge. The furor that eventually led to the defeat of those bills overshadowed this case. Which brings us to the MPAA. The lobby group was likely distracted from this case due to its heavy involvement in advocating for PIPA and SOPA. No longer, however, and they have now filed an amicus curiae brief with the US Seventh Circuit court of appeals, demanding the appeals court uphold the Northern Illinois District Court's ruling.

If the MPAA is successful and the decision is upheld, this could have far reaching, and dire, consequences for Internet users of all stripes; the ruling would seem to include even the idea of linking back to the host-site instead of embedding, essentially rendering a critical part of online culture illegal. It would, much like ACTA, accomplish a large part of what SOPA and PIPA sought to do without actually requiring the pesky consent of the governed that otherwise is at the heart of American law. 

Flava Works, Inc v. Gunter is currently pending, but should be reviewed by the 7th Circuit Court sometime later in 2012. Definitely keep an eye on this one, folks.