Flava Works, Inc. (Flava) produces and distributes videos of black men performing erotic homosexual acts. People must pay to view Flava’s videos online. Users are allowed to download Flava’s videos, but not to upload them. myVidster is an online social bookmarking service that allows people to bookmark online materials so that other people with similar tastes can find those materials easily. myVidster does not host videos on its website. People who access a video through a bookmark on myVidster’s website see the video through a frame that myVidster puts around it. The video remains on the server it was uploaded to. Flava sued myVidster for copyright infringement. The discussion focused on whether myVidster is a contributory infringer when someone uses its website to bookmark a video and then someone else clicks on the bookmark and watches the video.
The district court judge granted Flava’s motion for a preliminary injunction based on his analysis of Flava’s likelihood of successfully establishing copyright infringement at trial. myVidster appealed to the Seventh Circuit Court of Appeals. In an opinion written by Judge Richard A. Posner, the Seventh Circuit vacated the grant of preliminary injunction. The Seventh Circuit ruled that the district court judge erred by considering Flava’s likelihood of success on the merits as the only factor. The Seventh Circuit further ruled that, on the basis of the record before it, myVidster did not copy or distribute copyrighted works, that it was not a contributory infringer and that there was no basis for the preliminary injunction to be granted.
Although myVidster did not challenge the legality of Flava’s videos, the Seventh Circuit indicated that illegality is not a bar to copyrightability. Obscenity is a community standard which varies from place to place. Allowing obscenity as a copyright defense would result in the lack of uniform copyright enforcement throughout the country.
myVidster provides a connection by which users can see copyrighted videos. The user who watches the video does not violate the Copyright Act as long as he doesn’t make a copy. “The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.” (Opinion pdf page 7).
The Seventh Circuit examined Flava’s right to prevent copying and whether myVidster is the copier’s accomplice. Contributory infringement is “personal conduct that encourages or assists the infringement.” (Opinion pdf page 8). The Seventh Circuit determined that myVidster does not increase the amount of infringement unless its users copy the videos they watch. A facilitator of noninfringing conduct is not a contributory infringer.
The Digital Millennium Copyright Act (DMCA) does not apply to this situation because myVidster is not an infringer. There was no evidence on the record that myVidster encourages infringers to upload copyrighted works. myVidster is not a facilitator of copying, even though it knows that some of the bookmarked videos infringe copyright.
The Seventh Circuit discussed remoteness, the concept that liability should not extend to unanticipated consequences. The court attributed the lack of evidence on this issue, in part, to the default family filter setting on the myVidster website. The default family filter can be turned off to access pornographic videos. Flava blames myVidster for its drop in sales, but unauthorized Flava videos can be accessed from at least a dozen other websites. Flava’s financial troubles may be unrelated to any action of myVidster. Judge Posner’s comment about Google’s and Facebook’s remoteness analysis is classic:
Google and Facebook in a joint amicus curiae brief friendly to myVidster manage to muddy the waters by analyzing remoteness of injury from an alleged infringement not as a matter of general tort principles but as a species of layer cake.
(Opinion pdf page 13).
The Seventh Circuit thought that Google and Facebook made too many distinctions between the possible kinds of infringers, i.e., direct, secondary and tertiary infringers. According to Judge Posner, the law doesn’t recognize either secondary infringement or tertiary infringement.
The only distinctions relevant to this case are between direct infringement (which really ought just to be called infringement – the law doesn’t speak of ‘direct negligence’ versus ‘contributory negligence’ or ‘direct murder’ versus ‘aiding and abetting murder’) and contributory infringement, and between contributory infringement and noninfringement. The direct infringers in this case are the uploaders; myVidster is neither a direct nor a contributory infringer – at least of Flava’s exclusive right to copy and distribute copies of its copyrighted videos.
(Opinion pdf page 14).
The Seventh Circuit next discussed infringement by public performance. The right to perform a copyrighted work publicly is one of the exclusive rights of the copyright owner. The relevant part of the statutory definition for this case is
to transmit or otherwise communicate a performance…of the work…to the public…whether the members of the public capable of receiving the performance…receive it in the same place or in separate places and at the same time or at different times.”
(Opinion pdf page 14, quoting 17 U.S.C. §101).
The court distinguished between “performance by uploading” and “performance by receiving.” Performance by uploading is uploading plus bookmarking a video. Performance by receiving occurs when the video is transmitted to the viewer’s computer. Regardless of when the public performance occurs, myVidster doesn’t do anything different. myVidster doesn’t come into contact with the data stream. The data stream flows directly from the viewer’s computer to the server on which the video is located. myVidster does not provide a market for pirated works, as the videos are not being sold. myVidster does not have a financial incentive to encourage performance of Flava’s videos.
The Seventh Circuit did not rule that Flava is not entitled to a preliminary injunction at all. The court ruled that Flava is not entitled to a preliminary injunction on the record presented. At some point before it was sued by Flava, myVidster provided premium members with a backup service that made unauthorized copies of some of Flava’s videos. myVidster discontinued offering that service. Flava would be entitled to an injunction to prevent that activity from resuming. The Seventh Circuit also indicated that Flava may be entitled to a preliminary injunction if it can show that myVidster actually does significantly contribute to infringing Flava’s copyrights.
This case is Flava Works, Inc. v. Marques Rondale Gunter, No. 11-3190, Seventh Circuit Court of Appeals.