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].
Contributory Infringement
Flava 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.
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 infringer.
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 of copying.
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").
The court 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.
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].
In distinguishing 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 exonerate myVidster.
1. The court noted that this wasn't determinative because copyrights could be infringed without a pecuniary motive.
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