Letting Users Bookmark Videos Isn’t Infringement

     CHICAGO (CN) – A website did not contribute to copyright infringement because its users shared videos of “black men engaging in homosexual acts,” the 7th Circuit ruled.
     MyVidster.com provides “social bookmarking” services in which users point others to materials they have found on the Internet. When a user bookmarks a video, myVidster requests the embed code from the server that hosts the video. MyVidster then creates a webpage that makes the video appear on its site, though the original host server is actually still transmitting the video.
     Flava Works, a pornographic production company that focuses on gay black men, called myVidster a “contributory infringer” in a 2010 federal complaint.
     To access Flava Works’ videos, users must pay a subscription fee. Subscribers can then view the videos online or download them onto their computer for “personal, noncommercial use” only.
     Flava Works claims that myVidster contributes to infringement when it allows their mutual users to bookmark copyrighted Flava Works videos. It says such unauthorized access has caused its sales to fall by 30 to 35 percent, costing the company over $100,000 in revenue.
     U.S. District Judge John Grady granted a preliminary injunction against myVidsterm, but the 7th Circuit reversed Thursday.
     The only copyright infringers in this case are Flava customers who upload the copyrighted videos to the Internet, the federal appeals court found
     “Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income,” Judge Richard Posner wrote for a three-member panel. “No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement.”
     An individual who uses myVidster to bypass the pay wall “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 decision states.
     Since myVidster does not encourage copyright infringement through its site, it cannot be held liable for inducing or facilitating the illegal copying under the safe harbor protections of the Digital Millennium Copyright Act.
     MyVidster furthermore did not violate Flava Works’ right of performance, which can be interpreted in two ways when conferred on copyright holders: “performance by uploading” and “performance by receiving,” the court found.
     “On the first interpretation, performance by uploading, the performance of a movie in a movie theater might by analogy be said to begin not when the audience is seated and the movie begins but a bit earlier, when the operator of the projector loads the film and puts his finger on the start button; while on the second interpretation, performance by receiving, it begins when he presses the button and the reel begins to unwind,” Posner wrote.
     Either interpretation is unavailing for Flava Works, since myVidster does not contribute to a person’s decision to upload a copyrighted video to the Internet, and because the site merely directs users where to view the material.
     “To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and contributory infringement and by doing so make the provider of such information an infringer even if he didn’t know that the work to which he was directing a visitor to his website was copyrighted,” Posner wrote.
     The drop in business for Flava Works may also not have as severe as the producer claimed, the court observed. Of the 1.2 million bookmarks on myVidster, only 300 link to Flava Works videos. The record does not show whether any myVidster users have actually viewed the infringing videos.
     “There are at least a dozen websites besides myVidster’s on which access to unauthorized copies of Flava’s videos can be obtained,” Posner wrote. “So the $100,000 loss in revenue can’t be ascribed entirely to myVidster. Indeed, myVidster may have very little – even nothing – to do with Flava’s financial troubles.”
     In a silver lining for Flava Works, the court said there may be a case for direct infringement related to myVidster’s premium backup service, which makes copies of a user’s bookmarked videos on the site’s own servers. Though myVidster no longer offers the service, Flava may wish to seek an injunction against its future use on remand, the judges advised.
     “Flava may be entitled to additional preliminary injunctive relief as well, if it can show, as it has not shown yet, that myVidster’s service really does contribute significantly to infringement of Flava’s copyrights,” Posner wrote.
     Google and Facebook had submitted a joint brief in support of myVidster, saying that the site could be considered at worst a “tertiary” infringer beyond the reach of copyright law.
     The 7th Circuit dismissed the brief as irrelevant, however, because “the only distinctions relevant to this case are between direct infringement … and contributory infringement, and between contributory infringement and noninfringement.”

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