The European Court of Justice has decided that even an unauthorised video can be embedded by a third party without creating a new infringement.
The case, reported by TorrentFreak, centres around a dispute by a water filtering company, BestWater International, and a couple of men who work as contractors for a competitor (their names are redacted in the linked decision in German).
They had found a BestWater video on YouTube and embedded it on a site (presumably because they disagreed with some statement it made), and BestWater had fired the sueballs. Now, the EU court has decided that the men didn't infringe the company's copyright.
Its reasoning is that since the video was already available on YouTube, and since the defendants merely embedded a link in a Web page – they didn't make any changes – the embedding didn't communicate the content to “a new public”. As a result, it didn't create a new infringement.
With thanks to TorrentFreak for its translation, the judgement reads: “The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication.”
The decision doesn't change the status of the original video, however. For example, had BestWater DCMA-d the video at YouTube, it would probably have been taken down, leaving the defendants with a blank embedding on their site. ®