Last month, artist Christopher Boffoli filed suit against Twitter for contributory copyright infringement, alleging it failed to take down unauthorized copies of his images posted on Twitter and to disable tweets linking to or promoting those and other unauthorized copies.  According to the complaint, filed in the Western District of Washington (Case No. 2:12-cv-01534), Boffoli sent DMCA takedown requests in July and August, but Twitter did not comply with them.

This lawsuit highlights an interesting area of copyright law, involving websites that allow users to bookmark (post links to or embed) infringing content located elsewhere.  Recent decisions in this area, including a Seventh Circuit opinion vacating a preliminary injunction entered against a video bookmarking site, suggest that simply linking to an infringing site (or allowing someone to post such a link on your site) may not constitute either direct or contributory infringement.

In the Seventh Circuit case, Flava Works, Inc. v. Gunter, No. 11-3190 (7th Cir. Aug. 2, 2012), the plaintiff, Flava Works, like Boffoli, sent DMCA takedown requests to a site, myVidster.com, that did not deactivate the content in question.  The Seventh Circuit found that myVidster’s alleged failure to comply with the DMCA takedown procedure was irrelevant, because myVidster was not engaging in infringing conduct and therefore had no need for the safe harbor afforded by following DMCA procedure.

To elaborate, Flava Works, which allows its customers to purchase a limited right to view videos and download them to their computers, sued myVidster for contributory infringement for allowing its users to post links to unauthorized copies of Flava Works’ videos.  Another user can then click on one of those links and view the unauthorized video for free.  MyVidster does not host the videos in question.  Rather, someone else uploads the video to another server, and myVidster simply provides the forum for a link that connects the viewing patron’s computer with the server that stores the video.  The district court found that Flava Works would likely succeed on the merits.

The Seventh Circuit disagreed.  The opinion, written by Judge Posner, stated that myVidster could not be held liable for contributory infringement because the myVidster users were not engaging in any underlying direct infringement of Flava Works’ rights to copy, distribute and publicly perform its videos.  Specifically, the viewing patron is not violating Flava Works’ rights because he is simply watching the video, not making a copy of or distributing it.  Judge Posner’s opinion likened this to stealing a book from a bookstore or sneaking into a movie theater—it might be theft from the bookstore and the theater (or, here, from Flava Works), but it is not copyright infringement.  The bookmarker is not violating Flava Works’ rights, but rather merely giving “location” information for the videos, much like a newspaper lists show times and theaters.  The original uploader violated Flava Works’ rights, but there was no evidence that myVidster was complicit in that conduct by facilitating, encouraging or soliciting such uploads.

The opinion indicated that myVidster could be liable for contributory infringement on different facts, such as if it was receiving a direct financial benefit from the infringing videos, if it was encouraging illegal uploading or bookmarking to known infringing content, or if myVidster users bookmarked solely or primarily to infringing content.  Further, the opinion suggested that myVidster could be liable for direct infringement if its servers actually hosted the infringing videos or archived copies of the videos, regardless of whether done at myVidster’s own initiative or at the direction of the Internet user.

Much like myVidster, Twitter’s alleged failure to expeditiously act on Boffoli’s DMCA takedown requests may not matter if Twitter did not engage in any infringing conduct.  In the cases involving Tweets that simply link to unauthorized copies of Boffoli’s work located elsewhere on the Internet, this could very well prove true.  One significant difference between Twitter and myVidster, however, is that Twitter’s servers host some of the infringing content posted by users, whereas myVidster’s servers did not (at least, by the time of the appellate opinion).  Based on the reasoning of Flava Works, which echoes Ninth Circuit precedent in this regard, this difference may increase Twitter’s risk of liability.  See Perfect 10, Inc. v. Amazon.com, Inc., No. 06-55405 (issued May 16, 2007; amended Dec. 3, 2007) (discussing the “server test”).