Is it Copyright Infringement to Embed a Video?

After almost five years of embedding hundreds of educational videos from external websites, EduTube today received its first Cease and Desist - Copyright Violation message from Sockeye Media, the producer of Mother Goose Club Nursery Rhymes. This was sent in response to three videos from Sockey Media which were recently embedded in the EduTube website. So is this copyright infringement? After all, if Sockeye Media does not wish to allow embedding of their videos, they can simply disable embedding for their videos as explained here.

Investigating further, the YouTube Terms of Service states that:

"You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. (YouTube TOS Section 6C- "Your Content and Conduct")

The answer is therefore 'no', it is not copyright infringement to embed videos, at least not YouTube videos under the YouTube Terms of Service. 

There has also been a precedent where a federal appears court rejected embedding a third-party video as copyright infringement. In this case the video embedded was itself infringing copyright. Even in such cases it appears that only the uploader of the infringing content is liable. Not those who embed or otherwise promote the video. As long as no copy of the copyrighted video has been made, the copyright owner’s exclusive right has not been violated. And streaming a video from a website is not the same as making a copy of the video.