Flava Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826 (7th Cir. Aug. 2, 2012)

In vacating an order for a preliminary injunction, Judge Posner of the Seventh Circuit ruled that a social-bookmarking service was not liable for contributory copyright infringement when it allowed its users to “bookmark” videos owned by the plaintiff. In Flava Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826 (7th Cir. Aug. 2, 2012), video producer Flava Works sued myVidster for contributory copyright infringement. myVidster is an online social networking service that enables individuals who have similar tastes to point one another to online materials by “bookmarking” materials through myVidster’s website. The site is programmed in such a way that when a user clicks another user’s bookmarked video the video is transmitted directly from the original source site and played through a myVidster frame. The video is not copied or stored onto myVidster’s servers; rather, it is only streamed through myVidster’s site.

FlavaWorks’ videos are viewable on its site only upon payment and the user must agree not to copy, transmit, sell, etc. the video. However, when a user views a video via one of myVidster’s bookmarks, the user can view the entire video without payment. In essence, myVidster’s programming bypasses FlavaWorks’ pay wall.

The court found myVidster was not liable for contributory infringement because the underlying bookmarkers were not infringing FlavaWork’s copyrights. The site was designed in such a way that the site made no “copy” of the videos. Judge Posner likened the conduct to someone who sneaks into a movie theater and watches a copyrighted movie without buying a ticket. While the underlying conduct may circumvent the pay wall and may be illegal in other respects, it is not copyright infringement. Moreover, even if the users were infringing FlavaWorks’ copyrights by bookmarking the videos, there was no evidence that myVidster encouraged them to do so. Because myVidster did not contribute significantly to the infringement of FlavaWorks’ copyrights, the court vacated the district court’s preliminary injunction.