Because it was not satisfied that a social network, hosting links to copyrighted videos, was a contributory infringer, the Seventh Circuit has vacated a preliminary injunction against the social network. Flava Works, Inc. v. Gunter, No. 11-3190 (7th Cir. Aug. 2, 2012). According to Judge Posner's opinion for the court, even if the defendant, myVidster, knew that its website hosted links to infringing videos, there was no evidence that the defendant facilitated copying constituting copyright infringement. Therefore, the plaintiff, Flava Works, had not shown a likelihood that it would successfully show that the defendant was a contributory infringer.
The Court began its opinion by chastising the District Court for equating the plaintiff's purported showing of a likelihood of success with a showing of irreparable harm. Although eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), was a patent case addressing a permanent injunction, the Court found that case to govern here. However, although "likelihood of success was only one factor for the district judge to consider in deciding whether to grant a preliminary injunction," it was the only factor the parties had addressed, and the only factor the Court needed to consider here.
Flava's allegedly infringed videos were of a prurient nature, but Judge Posner noted that there was no obscenity defense for copyright infringement, nor any contention that Flava's videos were illegal. myVidster is a social networking site that allows users to provide bookmarks to video content. Thus, myVidster provides links allowing videos to be embedded in its site, but does not actually host the videos itself. On these facts, the Court considered whether myVidster was a contributory infringer.
The Court first considered whether myVidster is "a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video." The answer to this question was negative, because the visitor to myVidster's website merely viewed, but did not copy, the video. Bypassing Flava's pay wall may have been a bad thing to have done, just like it would be bad to steal a copyrighted book from a bookstore, but it was not copyright infringement. The party guilty of infringement "is the customer of Flava who copied Flava's copyrighted video by uploading it to the Internet." The Court therefore focused its analysis on "whether myVidster is the copiers' accomplice."
Flava had sent takedown notices to myVidster as provided in the Digital Millennium Copyright Act, 17 U.S.C. § 512(d). However, myVidster's failure to comply with the takedown requests was "irrelevant unless myVidster is contributing to infringement; a noninfringer doesn't need a safe harbor." There was no evidence that myVidster was a contributory infringer because there was no evidence that it was encouraging or facilitating the uploaders of the infringed works.
Further, if myVidster had invited people to upload infringing videos, it might be guilty of inducing infringement. However, there was no evidence that it had done so. myVidster might have known that infringing videos were bookmarked on its site "but that doesn't make it a facilitator of copying."
The Court also considered that "that the Copyright Act also makes it unlawful 'to perform the copyrighted work publicly,' 17 U.S.C. § 106(4), defined, so far as relates to this case, as 'to transmit or otherwise communicate a performance . . . of the work . . . to the public.'" In this case, such a public performance could occur when a user uploaded a bookmark to an infringing work to myVidster, or when a viewer received, i.e., viewed, the infringing video.
Because myVidster plays no role in the uploading, the first interpretation of "public performance" could not possibly help Flava. Providing a link, akin to providing an address and a time of a performance of a "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." The Court noted that "myVidster doesn't touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster."
The Court was surprised that Flava did not encourage the second interpretation of "public performance," that a public performance occurred when the video was viewed, because there myVidster did play a role. Under this theory, "myVidster is assisting the transmission by providing the link between the uploader and the viewer, and is thus facilitating public performance." However, Flava's videos were not being sold, and there was no evidence that they were actually being accessed via myVidster, rather than some other website. Thus, there was no evidence that myVidster was actually contributing to the videos' performance.
The primary injunction, as noted above, was vacated. It will be interesting to see what happens to this case on remand (and what proofs Flava will offer in light of the Seventh Circuit's opinion, which does give it some opportunities). Moreover, this opinion, which Judge Posner has peppered with interesting and debatable analogies to copyright infringement in the pre-digital world, is surely far from the last word on liability of social networks and other Internet service providers for direct and/or contributory copyright infringement based on links uploaded by users.