Plaintiff Flava Works, Inc. specializes in the production and distribution of a specific genre of adult-content videos. myVidster is a website through which users who have similar tastes can point one another to and provide access to online materials by “bookmarking” the materials on myVidster. Flava sued myVidster for contributory copyright infringement, alleging that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent plaintiff’s paywall. The district court granted Flava’s request for a preliminary injunction, finding that Flava had established a likelihood of success at trial. The Seventh Circuit, in a decision written by Judge Posner, vacated that preliminary injunction. The Seventh Circuit first noted that the district court erred at the outset by saying that the analysis boiled down to a single factor – the plaintiff’s likelihood of success – and ignoring that the “irreparable harm” requirement for the granting of a preliminary injunction is no longer assumed in copyright cases following the Supreme Court’s decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-93 (2006). Because the “likelihood of success” factor was the only one that the parties discussed, however, the Seventh Circuit confined its analysis to it, concluding that, based on the evidence presented, Flava had failed to demonstrate a likelihood of success at trial, as the facts suggested that myVidster did not encourage any direct infringement.
In order to access any of the Flava videos, a user must pay a fee in advance. Paying the fee also allows the user to download any Flava videos to his computer for his own personal noncommercial use. Users who downloaded Flava videos are prohibited from, but often do upload video to the Internet. myVidster users then bookmarked those unauthorized Internet copies of Flava’s copyrighted content. When another myVidster user accesses the bookmarked video, the viewer watches the video on the myVidster site, through a frame that myVidster has put around it, and that contains information including ads. The video is not stored on myVidster’s servers, however, and streams from the servers of the website onto which the video was originally uploaded.
The Seventh Circuit vacated the district court’s preliminary injunction. Using the most succinct definition of contributory infringement – “personal conduct that encourages or assists the infringement” – the court found that myVidster does not encourage or assist infringement because it does not facilitate any actual infringing conduct. Because myVidster’s servers do not host any of these videos, neither myVidster nor its users are creating a copy of the video being viewed, and there is no violation of Flava’s reproduction right. While, obviously, the person who illegally uploaded Flava’s copyrighted video to the Internet in the first place is an infringer, the Seventh Circuit held that a myVidster users who views such videos on the infringers’ websites is no more a copyright infringer than someone who sneaks into a movie theater and watches a copyrighted movie without buying a ticket. While these actions are “bad,” they do not constitute copyright infringement, and the facilitator of such conduct that does not constitute copyright infringement is not a contributory infringer.
The Seventh Circuit also held that simply knowing that some of the videos bookmarked on its site infringed copyright does not automatically mean that myVidster facilitated illegal copying. Users viewing the videos do not pay for them and therefore are not encouraging the infringing uploader. And no evidence existed that the unauthorized uploaders of the copyrighted videos were members of myVidster and uploaded the Flava videos for the sole purpose of bookmarking them, and somehow getting credit either for the bookmarking or the ensuing viewing of the video.
The court also considered the possibility that myVidster might be liable for facilitating the infringement of Flava’s exclusive right to public performance of its copyrighted videos under 17 U.S.C. §106(4). According to the court, under one interpretation of public performance – that performance occurs only when the video is transmitted to the viewer’s computer, or in other words, when it is communicated to the public in a form in which the public can visually or aurally comprehend the work – plaintiff could (but didn’t) make the argument that even though the video uploader is responsible for the transmitting, myVidster is assisting the transmission by providing the link between the uploader and the viewer, facilitating public performance. The court ultimately concluded, however, that even under this interpretation, based on the evidence presented, myVidster would not be considered to be contributorily liable. myVidster was not encouraging infringing conduct by creating or providing a market for pirated Flava works, since the infringers did not receive any payment for the uploaded videos from myVidster viewers, nor did myVidster have a pecuniary motive for pushing the viewing of Flava’s videos by visitors to the site, such that the bookmarking service actually contributed significantly to the unauthorized performance of Flava’s copyrighted works. The court also noted that no admissible evidence existed that the videos were actually being accessed via myVidster, rather than via other websites. Absent this evidence, myVidster was not contributing to their unlawful performance.