On August 2, 2012, the Seventh Circuit Court of Appeals, in an opinion written by Judge Richard Posner, vacated a federal district court’s granting of a preliminary injunction against myVidster for infringing the copyright in videos owned by Flava Works, Inc. The opinion is Flava Works, Inc. v. Marques Rondale Gunter, dba myVidster.com (7th Cir. 2012).

MyVidster (www.myvidster.com/) describes itself as “a social video bookmarking service” that allows its visitors to “collect, share and search” videos and also “explore video collections from other users.” A “bookmark” consists of a thumbnail still image from the video, which, when clicked on, opens a sub-page on myVidster’s site and triggers an embedded web address, and coded instructions for displaying the video. According to the Court, “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.” Posner distinguished this process from that of YouTube: “It’s like YouTube, except that YouTube hosts the videos it provides access to and myVidster … does not.”

Flava provides videos for a fee but allows subscribers to permanently download the videos they pay for and store them on their computers for “personal, noncommercial” use only. Flava sued myVidster for copyright infringement because users of Flava’s site were providing bookmarks on myVidster to videos behind Flava’s “pay wall.” The Court said that the infringer is not myVidster; rather, “the infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet” and “there is no evidence that myVidster is encouraging them, which would make it a contributory infringer.”

Aside from its support for the non-infringement of hyperlinking, even if such hyperlinks take an internet user to infringing content, which other courts have supported as well (perhaps most notably, the Central District of California in the 2000 Ticketmaster Corp v. Tickets.com Inc. case), the opinion has two highly interesting aspects, both of which it passes over lightly and without substantive analysis.

The first concerns the Digital Millennium Copyright Act (“DMCA”). Posner points out that by enacting the DMCA, Congress tried to prevent an online service provider, such as a social bookmarking service, from having to be “a policeman of copyright law” by providing a safe harbor from copyright infringement liability when “referring or linking users to an online location containing infringing material” if it complies with the DMCA’s conditions, which include disabling infringing content upon receiving a takedown notice from a copyright owner. Flava argued that myVidster did not comply with the DMCA because it failed to act on Flava’s takedown notices. Apparently, that argument had no traction with the Court: Posner simply said “this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor.” Posner says, in effect, that the DMCA is inapplicable. He does not say why, even though the case clearly involves “referring or linking users to an online location containing infringing material,” and even though myVidster posts a copyright statement on its site in which it proclaims its commitment to DMCA compliance.

The second concerns myVidster’s practice of “framing.” Many parties and courts have questioned the legality this practice, which occurs when a website provides a link to content on another website or server and, when the link is clicked upon, the content appears on the website providing the link and framed by that website’s bordering graphics and advertising (see, as a notable example, the complaint in The Washington Post Co. v. Total News, Inc. (S.D.N.Y. 1997)). Posner describes this framing when describing a myVidster user’s experience: “He’s watching [the video] through a frame that myVidster has put around it, containing ads…. He may think, therefore, that he’s seeing the video on myVidster’s website [,b]ut actually the video is being transmitted directly from the server on which the video is stored to the viewer’s computer.” Posner provides no further comment on this framing practice, either on its potential for consumer deception (even though he acknowledges that in his description), or on the fact that the act of downloading the video from the hosting server to the user’s computer, creates, within the frame, a copy on the user’s computer (albeit a temporary download file), which perhaps does have significance in a copyright infringement analysis.

The silence of the Seventh Circuit on these two salient aspects of this case raises the question whether Flava will write a writ of certiorari to the U.S. Supreme Court.