CHICAGO—Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals issued an opinion on behalf of a three-judge panel yesterday that vacates a 2011 lower court ruling in Flava Works v MyVidster. The case dates back to Oct. 2010, when the Miami-based gay content producer filed a copyright infringement lawsuit in the Northern District of Illinois against Marques Rondale Gunter, owner and operator of the "social video bookmarking" website myVidster.com, and John Does 1-26.
As AVN has previously reported, "In July 2011, District Court Judge John F. Grady granted Flava a preliminary injunction, and used the occasion to publicly rebuke Gunter for his failure to curb repeat infringers, which he said was required by the DMCA in order for myVidster to qualify for safe harbor protection, as determined by 17 USC §512."
In his ruling, we reported, "Grady... used as cover a 2003 ruling in the Aimster copyright case made by the U.S. Court of Appeals for the Seventh Circuit, the same court now hearing the Flava appeal. In that case, a three-judge panel upheld a lower court's "preliminary injunction against Aimster, holding that the plaintiff would likely be successful at trial in demonstrating that Aimster was a contributory infringer."
In support of myVidster, some pretty big players weighed in, including the Motion Picture Association of America (MPAA), Google and Facebook. whose lawyers filed amicus briefs in support of myVidster. On the other side, EFF and Public Knowledge co-authored a brief in support of Flava Works that read, in part, "The district court order promises to chill innovation and harm the public interest. Accordingly, Amici respectfully request this Court reverse or remand for further proceedings and order the district court to comply with the Supreme Court’s eBay ruling and clarify its treatment of §512(i)."
The MPAA disagreed, of course, arguing against EFF's insistence "that myVidster had no obligation to terminate the accounts of any of its users. This approach flouts the plain language of the DMCA and its legislative history and would render the statute’s instruction to terminate repeat infringers’ access a nullity."
The MPAA also repeated claims made in amicus filings by Google and Facebook that "myVidster is not a contributory infringer because, they claim, myVidster’s users did not engage in direct infringement, and instead at most were secondary infringers. Amici go on to argue that myVidster cannot be 'tertiarily' liable for the direct infringement of the third parties whose servers hosted the infringing copies that myVidster users embedded links to."
In the end, these arguments prevailed, with Posner writing, "myVidster is not providing a market for pirated works, because infringers who transmit copyrighted works to myVidster’s visitors are not selling them. That isn’t determinative, because copyrights can be infringed without a pecuniary motive. But it is relevant to whether myVidster’s bookmarking service is actually contributing significantly to the unauthorized performance of Flava’s copyrighted works by visitors to myVidster’s website. It’s not as if myVidster were pushing the uploading of Flava videos because it had a financial incentive to encourage performance of those works, as the swap meet did."
However, despite writing that "on the record compiled so far in this litigation there is no basis for the grant of a preliminary injunction," Posner added, "That is not to say that Flava can’t establish grounds for such an injunction, consistent with the eBay standard. It seems at least entitled to an injunction against myVidster’s uploading to its website videos in which Flava owns copyrights. Before it was sued by Flava, myVidster had been doing that—making copies of videos that some of its subscribers had posted, including videos copyrighted by Flava. Although myVidster doesn’t charge for membership in its social network, it charges a fee for a premium membership that included the backup service. That service infringed Flava’s copyrights directly—it didn’t just abet others’ infringements."
He added, "It’s thus a surprise that the preliminary injunction doesn’t enjoin the backup service, especially since the district judge considered it evidence that myVidster was contributing to the infringing activity of its members. (Actually, though, we’ve seen that the members were not the infringers—the third parties who uploaded Flava videos to the Internet were the infringers to whose activities myVidster is alleged to have been contributing.)"
Unfortunately, wrote Posner, Judge Grady "had written said that while the 'plaintiff also referred in closing argument to its claims of direct copyright infringement and inducement of copyright infringement, . . . its motion for a preliminary injunction is not based on those claims.' The backup service was direct infringement—myVidster was copying videos, including some of Flava’s, without authorization. Yet as the judge said, Flava didn’t make a claim for direct infringement a basis for its motion for preliminary relief. It doesn’t seem to be interested in such an injunction."
Perhaps, added Posner, such an injunction can be considered on remand. "Flava may be entitled to additional preliminary injunctive relief as well," he wrote, "if it can show, as it has not shown yet, that myVidster’s service really does contribute significantly to infringement of Flava’s copyrights. The preliminary injunction that the district court entered must, however, be VACATED."
The Huffington Post quoted Flava Works CEO Phillip Bleicher as saying, "This (decision) keeps the door open to massive copyright infringement."
The Appeals Court ruling can be accessed here.