Neither Embedding Nor Watching Unauthorized Video Infringes, 7th Circuit Says

Gay porn website Flava Works sued myVidster for facilitating access to its videos that were illicitly uploaded to other websites. MyVidster users post to the service links of videos hosted elsewhere. It then requests an “embed code” from the hosting site and streams the video from the originating site inside an ad-supported video frame on myVidster. The district court granted a preliminary injunction based solely on Flava Works’ “likelihood of success,” which contradicts the Supreme Court’s eBay v. MercExchange ruling that irreparable harm can’t be presumed from a showing of infringement, Posner said (http://1.usa.gov/MJ9NCF).

"Like a telephone exchange connecting two telephones, [myVidster] is providing a connection between the server that hosts the video and the computer of myVidster’s visitor,” Posner said: “But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right” to reproduce and distribute copies. Neither would a person who steals a book from a bookstore and reads it, or sneaks into a movie theater to watch a movie, he said: “The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer."

So DMCA Section 512 isn’t needed to shield myVidster’s actions, Posner said: Flava Works said myVidster ignored its takedown requests, but “this is irrelevant” because “a noninfringer doesn’t need a safe harbor.” Posner acknowledged that the panel may be missing relevant information because the appeal came from the preliminary injunction. Given the record, there’s “no evidence that myVidster is encouraging” users to either upload infringing videos or bookmark them, “which would make it a contributory infringer,” he ruled. MyVidster’s role in infringement is far too peripheral to draw liability, Posner said. “True, bookmarking is a way of making friends on a social network, and one needs something to bookmark, and so if you want to make friends with people who like the kind of videos that Flava produces you may be inclined to upload those videos to the Internet in the hope that someone will bookmark them on myVidster’s website and someone else will watch them and be grateful to you,” he said: “But this is very indirect.”

Citing his own research, Posner said that when the “family filter” is turned off in a user’s myVidster settings, “your visit will reveal a mixture of pornographic and nonpornographic videos, with the former predominating, and of those the majority are homosexual and many of the actors in the homosexual videos are black.” But Flava Works isn’t the only producer of such material and it only managed to identify 300 of its works out of 1.2 million bookmarked at myVidster, without saying how many of them got watched, Posner said: The plaintiff acknowledged “there are at least a dozen” other sites that provide illicit access to its works, so blaming its estimated $100,000 revenue loss on myVidster is a stretch. Posner faulted a joint friend-of-the-court brief by Facebook and Google for “muddy[ing] the waters” by claiming that users bookmarking links on myVidster are “secondary” infringers and the bookmarking site is at best a “tertiary” infringer. “The only distinctions relevant to this case are between direct infringement ... and contributory infringement, and between contributory infringement and noninfringement,” he said.

Judging whether myVidster violates the public performance right in the Copyright Act is complicated, Posner said: “Legislative clarification ... would therefore be most welcome.” He analogized what he called the “performance by uploading” theory to a projector operator in a theater who “loads the film and puts his finger on the start button,” and the “performance by receiving” theory to “when he presses the button and the reel begins to unwind.” On myVidster, “the viewer rather than the sender (the latter being the uploader of the copyrighted video) determines when the performance begins, and it is odd to think that every transmission of an uploaded video is a public performance,” Posner said. Yet Flava Works uses the “uploading” theory to pursue myVidster, which is “hopeless” for its case, he said: To use another 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. ... Is myVidster doing anything different?"

Contrasting the case with 9th Circuit precedent about a swap-meet operator’s liability for widespread sales of pirated CDs through its market, Posner said “myVidster is not providing a market for pirated works, because infringers who transmit copyrighted works to myVidster’s visitors are not selling them.” The site also has no recognizable “financial incentive to encourage performance” of the illicit Flava Works videos, he said. The case is also distinct from the 7th Circuit’s Aimster file-sharing precedent, in which the defendant couldn’t point to any noninfringing use of its file-sharing service, Posner said. “Unlike Aimster, it’s not encouraging swapping, which in turn encourages infringement, since without infringementthere is nothing to swap."

Flava Works can probably get an injunction against myVidster’s premium backup service that uploaded videos linked elsewhere to its own servers, for a subscription fee -- a practice it’s since halted, Posner said. For some reason Flava Works didn’t raise that issue at the district court, though at oral argument its lawyer said it “wouldn’t oppose such an injunction, and maybe this will awaken Flava’s interest,” the judge said. “This is something for consideration on remand."

"While limited to the 7th Circuit, this ruling could still be quite handy in a number of other cases,” such as the attempted extradition of U.K. student Richard O'Dwyer for his TVShack.net (WID Feb 1 p8) and the U.S. seizure of domain names for Spanish sports video site Rojadirecta (WID Aug 31/11 p1), said TechDirt founder Mike Masnick (http://xrl.us/bnjnj6). Neither of those cases is taking place in courts bound by 7th Circuit precedent. Though Posner’s analysis is “at times, convoluted, he does clearly make the main point: if there’s infringement, it’s completely disconnected from the user watching the video and the site doing the embedding,” Masnick said.

Posner’s analysis “breezily” says “sideloading” is direct infringement, which “is almost certainly bad news for Pinterest,” said Eric Goldman, director of the High Tech Law Institute at Santa Clara University (http://xrl.us/bnjnkc). That photo-sharing site “routinely engages in sideloading without a lot of explanation to its users, presumably premised on the idea that storing the remotely linked files is authorized by the user and thus qualifies for” a DMCA safe harbor, he said: “This ruling provides a warning that judges may not see it the way Pinterest does."

But because Posner’s “drafting is a train wreck,” it will probably be helpful only to myVidster and not to similarly situated sites, Goldman said. It “makes a number of questionable and undefended offline analogies, makes assumptions about factual questions that could/should be remanded to the district court, barely engages with or cites to other legal precedent, raises and addresses issues that the litigants never raised,” and Posner “unhelpfully rejects the standard” legal definition for contributory infringement, Goldman said. The judge’s analysis of the public performance right was “especially inscrutable,” and his omission of the 9th Circuit’s “thoughtful and highly relevant discussion about public display and the difference between embedding content via links and hosting it” is puzzling, Goldman said. The opinion would thus be a good candidate for full-court review at the 7th Circuit if Flava Works asked for it, he said.