If It's Not Copying, It's Not Copyright Infringement: Why the Seventh Circuit Overturned an Injunction Against myVidster.com

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

This past week, myVidster.Com was hijacked by Dutch cyber-pirates, and the owners were really happy when it came back on line Friday.  This is because, putting aside the hijacking, August was a pretty good month for myVidster.Com, thanks in large part to 7th Circuit Court of Appeals Justice Richard Posner.

MyVidster.com is the latest social media site to become the latest social media site.  It allows users to engage in “social bookmarking,” which involves internet citizens sharing hyperlinks to online materials in which they may share a mutual interest.  In other words, it’s a porn site.  Well, maybe that’s not completely fair.  Users find all sorts of videos stored in various places on the web, and then share links to it.  For example, I might put a video of a cat on my firm’s server, and a myVidster.com user who likes cats might find that video and share a link.  Then, other feline-inclined myVidster.com users would click on the link and watch the video.  Although the cat video is being streamed directly from its original location on my firm’s server, the myVidster.com user sees it as though it is appearing on myVister.com, that is, surrounded by a frame that contains ads sold by myVidster.com.  Here’s how Judge Posner described it:
"It’s like YouTube, except that YouTube hosts the videos it provides access to and myVidster as we know does not. Another difference, however, is that YouTube refuses to provide access to pornography, and myVidster, as we also know, is not so choosy—on the contrary. It’s true that its home page, www.myvidster.com/ (visited July 4, 2012), lists videos that range from the fighting in Syria to “Obamacare” and “Ugliest Tattoos” and “Why You Should Spiral-Cut Your Wiener” (and yes, that really is about hot dogs), with nary a pornographic video among them. But this is misleading, because in the default setting on myVidster (the setting when you first click on its website) the “family filter” is turned on; if you turn it off, your visit will reveal a mixture of pornographic and nonpornographic videos, with the former predominating . . ."
The occasion for Judge Posner’s description was a suit brought by porn company FlavaWorks.  FlavaWorks allows its members to download videos from FlavaWorks.com on the condition they agree not to share them.  Not surprisingly, many FlavaWorks  members haven’t read the fine print, and post the videos on publicly-accessible servers.  MyVidster.com users find those videos and link to them, allowing other myVidster.com users free access to the videos.  FlavaWorks claimed that about 300 of its videos had been pirated in this manner, resulting in the loss of nearly $100,000 in revenue and declining sales.  FlavaWorks brought suit against myVidster.com for contributory copyright infringement in the Federal District Court for the Northern District of Illinois.  The District Court issued an injunction in FlavaWorks’ favor.

But last month, that injunction was overturned by the 7th Circuit.  In his written opinion, Judge Posner acknowledged that FlavaWorks was being wronged, and that myVidster may even have encouraged subscribers to circumvent FlavaWorks’ pay wall.  However, in order to have copyright infringement, someone has to make a copy.  And nobody on the myVidster.com end of things was actually making a copy.  Sure, an original authorized copy was downloaded by a FlavaWorks’ member, who may have violated the law by posting it somewhere publicly.  But according to Judge Posner, once that video was uploaded somewhere, neither the myVidster.com user (who simply posted a link to the video) nor myVidster.com itself (which only played the video from its stored location) was actually making a copy.  Nor could the display of the video be considered a “public performance,” although the Court felt this was a close call.  Rather, what was going on here was more analogous to stealing a copyrighted book from a bookstore or sneaking into the movies.  “That is a bad thing to do (in either case)” wrote Judge Posner, “but it is not copyright infringement."

By the way, if you are wondering why indeed you should spiral cut your wiener, the video is available here.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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