In an important new copyright opinion in Flava Works v.myVidster.com, Judge Richard Posner of the 7th Circuit Court of
Appeals implies some squeamishness about Flava Works' products.
He notes that "some people would disapprove" of a service that
produces and distributes videos of "men engaged in homosexual
acts." The judge goes on to write, however, that even obscene
material is eligible for copyright -- a truism that's already
apparent to anyone who follows copyright law, considering that
as pornography has proliferated on the Internet, porn producershave been in the vanguard of battling against technology in an
effort to enforce their IP rights.
Posner's opinion is a victory for technology. The judge,
writing for a three-judge appellate panel that also included
judges Joel Flaum and Diane Wood, vacated a preliminary
injunction against the "social bookmarking" site myVidster,
which permits users to access videos recommended (or
"bookmarked") by other users. Posner distinguished myVidster's
model -- which essentially embeds code from the recommended
video to facilitate access to the video from the content
originator's server -- from that of old-school file-sharing
sites such as Napster and Aimster. In file-sharing, users upload
and download actual files. MyVidster, by contrast, merely
creates a link to the original site, even though that link
permits free access to protected material.
Flava, represented by Meanith Huon of the Huon Law Firm, had
argued that by helping users to access videos that are behind a
paywall, myVidster is costing Flava tens of thousands of dollars
in lost revenue. Posner said, however, that the site is simply
not a direct infringer since it only provides "a connection
between the server that hosts the video and the computer of
myVidster's visitor." Even the viewers who used myVidster to
watch Flava videos didn't infringe Flava's copyrights, Posner
said, so long as they didn't make their own copies of the
material. Those users may be thieves, Posner suggested, but
they're not infringers.
Posner could have ended his analysis there, since U.S.
District Judge John Grady of Chicago had granted the injunction
on Flava's theory of direct infringement. But the appellate
judge, clearly engaged intellectually by the issues the case
presented, went on to consider whether myVidster can be held
liable for contributing to infringement. That's quite a hot
issue in federal appeals courts, with recent 2nd and 4th circuit
rulings calling for courts to engage in fact-specific inquiries
rather than relying on Internet sites' policy statements. Flava
asserted that myVidster isn't entitled to the safe harbor
protection of the Digital Millennium Copyright Act because it
ignored takedown notices. Posner said that wasn't of consequence
since there was no evidence that myVidster was encouraging users
to recommend copyrighted content.
"If myVidster invited people to post copyrighted videos on
the Internet without authorization or to bookmark them on its
website, it would be liable for inducing infringement," Posner
wrote. "But inducing infringement was not a ground of the
preliminary injunction issued by the district judge in this case
and anyway there is no proof that myVidster has issued any such
Nor was there evidence that the site, represented pro bono
by Neal, Gerber & Eisenberg, encouraged those who view
recommended videos to infringe copyrights, the judge said.
"MyVidster displays names and addresses ... of videos hosted
elsewhere on the Internet that may or may not be copyrighted,"
he wrote. "Someone who uses one of those addresses to bypass
Flava's pay wall and watch a copyrighted video for free is no
more a copyright infringer than if he had snuck into a movie
theater and watched a copyrighted movie without buying a ticket.
The facilitator of conduct that doesn't infringe copyright is
not a contributory infringer." (To some extent, Posner adopted
the reasoning of an amicus brief filed by Durie Tangri on behalf
of Google and Facebook.)
The Copyright Act prohibits illegal performance of a
copyrighted work as well as illegal copying, so Posner also
examined the question of when a video is "performed": Is it
performed when the first user recommends the video and myVidster
creates a link, or when the second user clicks on the link to
view the video? Posner noted that Flava hadn't raised the only
remotely viable argument in this case, that performance is tied
to the second user, and suggested that Congress clarify the law.
MyVidster counsel Kevin May of Neal Gerber said Posner's
ruling should come as a relief to sites like Google and
Facebook, in which users routinely post links to content hosted
on other servers. Under the reasoning of the preliminary
injunction, May said, sites could be liable just for linking to
copyrighted content. "It was a shocking decision," he said.
Posner, on the other hand, seemed to understand the difference
between facilitating illegal file-sharing and "the mere creation
of a link," May said. (According to May, the judge surprised him
at oral argument by asking questions about contributory
infringement that hadn't been addressed by the lower court.)
I left a message for Flava counsel Huon and Google counsel
Joseph Gratz but didn't hear back.
(Reporting by Alison Frankel)
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