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 invitations."

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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