Wikilegal/Flava Works, Inc. v. Gunter

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In August 2012, the 7th Circuit vacated a preliminary injunction against a social-bookmarking service, myVidster.com ("myVidster"), finding that myVidster could not be found to be a “contributory infringer” based on the fact that, through bookmarking, it linked users to videos uploaded to the Internet by third parties, some of which may have been the copyrighted works of video producer, Flava Works, Inc.^[1]

Background

Flava Works, Inc. (“Flava Works”) is a producer and distributor of pornographic videos.^[2] Websites hosting Flava Works' videos make them accessible to users, but only after the user: (1) pays a fee; and (2) agrees not to copy, transmit, or sell the videos.^[3] Users are able to download Flava Works' videos for personal, noncommercial use only.^[4]

MyVidster.com (“myVidster”) is a social-bookmarking website, where individuals with similar tastes can direct one another to online content catering to those tastes through “bookmarking” the videos on myVidster.^[5] When a user of myVidster bookmarks a video, myVidster automatically requests the video's embed code, and creates a web page containing a thumbnail of the video.^[6] When a myVidster user clicks on the video thumbnail, the user is connected to the server hosting the video, and is able to view the video.^[7] Notably, such videos are transmitted directly from the server of the third party who uploaded it to the Internet, and myVidster merely provides the connection between its users' computers and the third-party servers.^[8] As was the case with the Flava Works videos, some of the videos have been uploaded in violation of a copyright.^[9] Flava Works brought a copyright infringement suit against myVidster and moved for a preliminary injunction, which the District Court granted based on its finding that, after a trial, myVidster would likely be found to be a “contributory infringer.”^[10] The present case is myVidster's appeal of the preliminary injunction.^[11]

Issues Examined In This Case

This case examined whether an online service provider who, through social-bookmarking, links its users to content uploaded to the Internet by third parties, could be held liable as a contributory infringer if some of the content was uploaded in violation of a copyright.^[12]

Court's Analysis

It is tautologous that, in order to hold a party liable for contributory infringement, there must be someone who is committing copyright infringement directly and whose infringing conduct is being encouraged by the alleged contributory infringer. In examining whether myVidster users were copyright infringers, the Court noted that, although myVidster users were bypassing Flava Works' pay wall and viewing the copyrighted material free of charge, as long as myVidster users were not copying or distributing Flava Works' videos, they were “no more a copyright infringer than if [they] had snuck into a movie theater and watched a copyrighted movie without buying a ticket.”^[13] And if the conduct that myVidster was facilitating (i.e., the viewing of copyrighted videos) was not copyright infringement, then myVidster could not be found to be a contributory infringer.^[14] According to the Court, it was the individuals uploading Flava Works' videos who had infringed Flava Works' copyright.^[15] Therefore, unless myVidster could be found to be encouraging the third-party uploaders to upload Flava Works' videos, it could not be found to be a contributory infringer (at least based on the copying and distribution of Flava Works' videos).^[16] As to this question, the Court found the causal chain connecting myVidster and the third-party uploaders too tenuous to assign liability as a contributory infringer, in part, because it had no way of encouraging people to upload videos.^[17]

Finally, in what appears to be dicta, the Court examined whether myVidster's conduct could be considered direct copyright infringement. The Court noted that copyright holders enjoy more than just the exclusive right to copy and distribute the content in question, they also own the exclusive right “to perform the copyrighted work publicly.”^[18] If myVidster was found to be engaged in the public performance of Flava Works' videos, it could be liable for copyright infringement, directly.^[19] To this question, the Court considered two possible interpretations of what constitutes “public performance” in the context of Internet videos: (1) that a video is publicly performed when initially uploaded to the Internet, and made available to the public for viewing; and (2), that a video is publicly performed only when the video is transmitted to the viewers computer.^[20] Either way, the Court determined that, although myVidster played a role in the viewing of the videos, “myVidster doesn't touch the data stream, which flows directly from one computer to another, neither being owned [n]or operated by myVidster.”^[21] According to the Court, myVidster's activity is analogous to the New Yorker listing plays and giving the name and address of the theaters where they are being performed.^[22]

References

↑ See Flava Works, Inc. v. Gunter, 689 F.3d 754, 763 (7th Cir. 2012). This case has been reported as standing for the proposition that websites “providing a link to copyrighted material should not be held liable as a contributory copyright infringer if users of the site bookmarked, but did not upload, the copyrighted material to the site servers.” See Ryan N. Phelan, “Web-linking Is Not Necessarily Copying,” Association of Corporate Counsel (Sep. 28, 2012). Judge Posner's analysis, however, was highly fact-dependent, warranting a more cautious interpretation. On different facts, it appears theoretically possible that linking to copyrighted videos through bookmarking could expose an online service provider to liability for contributory infringement. But this case seems to illustrate the evidentiary, causality, and remoteness issues that bookmarking raises, that make it less likely a court will assign liability for contributory infringement.
↑ See id. at 755
↑ Id. at 756
↑ Id.
↑ Id.
↑ Id.
↑ Id.
↑ Id. at 757
↑ See id. at 759
↑ See id. at 754-55
↑ Id. at 754
↑ See id. at 757
↑ See id. at 757-58
↑ See id. at 758
↑ See id. at 757
↑ See id.
↑ See id. at 759, 761
↑ See id. at 760
↑ See id. at 761
↑ See id. at 760
↑ See id. at 761
↑ See id. The Court admitted, however, that, if the public performance is the viewing of the video (as opposed to the initial uploading of the video), there is an argument that myVidster is facilitating the public performance by “providing a market for pirated works,” but found that there was not enough evidence to support this theory. See id." at 761-62 (citing Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996). This portion of Judge Posner's opinion is unclear as to whether he is discussing direct or contributory copyright infringement.

[1] See Flava Works, Inc. v. Gunter, 689 F.3d 754, 763 (7th Cir. 2012). This case has been reported as standing for the proposition that websites “providing a link to copyrighted material should not be held liable as a contributory copyright infringer if users of the site bookmarked, but did not upload, the copyrighted material to the site servers.” See Ryan N. Phelan, “Web-linking Is Not Necessarily Copying,” Association of Corporate Counsel (Sep. 28, 2012). Judge Posner's analysis, however, was highly fact-dependent, warranting a more cautious interpretation. On different facts, it appears theoretically possible that linking to copyrighted videos through bookmarking could expose an online service provider to liability for contributory infringement. But this case seems to illustrate the evidentiary, causality, and remoteness issues that bookmarking raises, that make it less likely a court will assign liability for contributory infringement.

[2] See id. at 755

[3] Id. at 756

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 757

[9] See id. at 759

[10] See id. at 754-55

[11] Id. at 754

[12] See id. at 757

[13] See id. at 757-58

[14] See id. at 758

[15] See id. at 757

[16] See id.

[17] See id. at 759, 761

[18] See id. at 760

[19] See id. at 761

[20] See id. at 760

[21] See id. at 761

[22] See id. The Court admitted, however, that, if the public performance is the viewing of the video (as opposed to the initial uploading of the video), there is an argument that myVidster is facilitating the public performance by “providing a market for pirated works,” but found that there was not enough evidence to support this theory. See id." at 761-62 (citing Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996). This portion of Judge Posner's opinion is unclear as to whether he is discussing direct or contributory copyright infringement.

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