The 7th Circuit yesterday rejected a
claim of contributory copyright infringement directed at the video/social
bookmarking service, myVidster. The court held that myVidster is not a contributory infringer when a visitor
to its website bookmarks a copyrighted video and later someone
clicks on the bookmark and views the video. Flava Works v. Gunter, 2012 U.S. App. LEXIS 15977 (7th Cir. 2012) [enhanced version available to lexis.com subscribers].
Works argued that myVidster's
bookmarking service, which allowed visitors to bookmark and view Flava's copyrighted
pornographic videos, constituted contributory infringement. A visitor to myVidster might think:
that he's seeing the video on myVidster's
website. But actually the video is being transmitted directly from the server
on which the video is stored to the viewer's computer. Someone had uploaded the
video to that server, and later a subscriber to myVidster had come across it
and decided to bookmark it. This led to the creation of a page on myVidster's
website and by clicking on the page other visitors to myVidster can now view
the video-but on the server that hosts the video, not on myVidster's website;
the bookmarked video is not posted on myVidster's website.
decision, the 7th Circuit rejected Flava's claim of contributory
infringement. Like a telephone exchange connecting two telephones, myVidster provided
a connection between the server that hosted the video and the computer of
myVidster's visitor. However, as long as the visitor made no copy of the
copyrighted video that he was watching, the court held that he was not
violating the copyright owner's exclusive right, conferred by the Copyright
Act, "to reproduce the copyrighted work in copies" and "distribute
copies of the copyrighted work to the public." In so holding, the court offered several
His [the visitor] bypassing Flava's pay wall by viewing the uploaded
copy is equivalent to stealing a copyrighted book from a bookstore and reading
it. That is a bad thing to do (in either case) but it is not copyright
infringement. The infringer is the customer of Flava who copied Flava's
copyrighted video by uploading it to the Internet.
[U]nless those visitors copy the videos they are viewing on the infringers'
websites, myVidster isn't increasing the amount of infringement. An employee of
Flava who embezzled corporate funds would be doing the same thing - reducing
Flava's income - but would not be infringing Flava's copyrights by doing so.
myVidster displays names and addresses (that's what the thumbnails are, in
effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted.
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
If myVidster had invited
people to post/bookmark the copyrighted videos, it would have been liable for
inducing infringement - a form of contributory infringement that emphasizes
intent over consequence. And while myVidster knew that some of the videos
bookmarked on its site infringed copyrights, that didn't make it a facilitator
The case was
important enough for Google and Facebook
to file a joint amicus curiae brief. In that brief, Google and Facebook
described myVidster as being at worst a "tertiary" infringer. In
addressing this contention, the court noted that the law recognized neither tertiary infringement nor "secondary infringement." The court made the following observation:
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. That is an essential qualification.
Right of Public Performance
The court also
addressed Flava's protected right of public performance, dividing myVidster's
actions into two possible categories:
- "performance by uploading" (i.e., uploading plus bookmarking
a video is a public performance because it enables a visitor to the
website to receive (watch) the performance at will); and
- "performance by receiving" (i.e., the performance occurs
only when the work (Flava's video) is transmitted to the viewer's computer - in
other words when it is "communicated to the public in a form in which
the public can visually or aurally comprehend the work").
illustrated the distinction as:
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.
The first category
was deemed "hopeless" for Flava, there being no evidence that myVidster was
contributing to the decision of someone to upload a Flava video to the Internet,
where it then became available to be bookmarked on myVidster's website. The
court made this analogy:
By listing plays and giving the name and address of the theaters where
they are being performed, the New Yorker
is not performing them. It is not "transmitting or communicating"
them. Is myVidster doing anything different?
However, in examining the second category, the court noted that:
... if the public performance is the transmission of the video when the
visitor to myVidster's website clicks on the video's thumbnail (the second
interpretation) and viewing begins, there is an argument that even though the
video uploader is responsible for the transmitting and not myVidster, myVidster
is assisting the transmission by providing the link between the uploader and
the viewer, and is thus facilitating public performance. There is a remote
analogy to the "swap meet" operated by the defendant in Fonovisa, Inc. v.Cherry Auction, Inc.,
76 F.3d 259, 262 (9th Cir. 1996) [enhanced version available to lexis.com subscribers].
myVidster from "swap meets," the court held that:
Flava's pirated videos are not sold, and there isn't even admissible
evidence that they're actually being accessed via myVidster, rather than via other
websites, and if they are not, myVidster is not contributing to their
performance. Unlike the defendant in Fonovisa,
myVidster is not providing a market for pirated works, because infringers who
transmit copyrighted works to myVidster's visitors are not selling them.1
... [myVidster is] not encouraging swapping, which in turn encourages
infringement, since without infringement there is nothing to swap.
Still a Possibility for Injunctive Relief
Flava's claim for
relief wasn't entirely foreclosed. The 7th Circuit noted that Flava
might still establish grounds for a preliminary injunction, consistent with the
eBay standard. Before it was sued by
Flava, myVidster made copies of videos that some of its subscribers
had posted, including videos copyrighted by Flava. While myVidster did not
charge for membership in its social network, it did charge a fee for a premium
membership that included the backup service. That service infringed Flava's
copyrights directly (not just abetting others' infringements). Thought myVidster had
stopped offering this service, the court noted that Flava would still be
entitled to an injunction because cessation of an unlawful practice did
1. The court noted that this wasn't determinative because copyrights could be
infringed without a pecuniary motive.
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