The U.S. Court of Appeals for the Seventh Circuit has determined that an entity that provides a link to copyrighted material should not be held liable as a contributory copyright infringer if users of the site bookmarked, but did not upload, the copyrighted material to the  site servers.  Flava Works  v. Marques Rondale Gunter, Case No. 11-3190 (7th Cir., Aug. 2, 2012) (Posner, J.). 

Flava is a producer and distributer of internet video content.  Flava provided its video content on its website for a fee.  After signing up, Flava customers could access the video content.

myVidster provides an internet video bookmarking service.  Users of myVidster who find videos on the internet can “bookmark” (i.e., link) those videos to make them available to other myVidster users.  When other users clicked the bookmark, the videos (e.g., Flava videos) appear in a widow frame of the myVidster website.  However, the videos are streamed from the original third-party server, e.g., the Flava server(s) or other servers that Flava’s videos had been uploaded to; they are not streamed from or copied onto myVidster servers.

Flava filed suit, asserting that the myVidster bookmark links allowed users to essentially bypass Flava’s website (i.e., Flava’s “pay wall”) and watch Flava’s videos for free (Flava’s customers would obtain access to and then upload Flava’s videos to third-party servers, which myVidster users would then find and bookmark). Flava contended that this constituted copyright infringement and was granted a preliminary injunction against myVidster by the district court. myVidster appealed.

In reversing the district court, Judge Posner found that “bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement.”  Instead, Posner found that “the infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.”  Citing to Perfect 10, Judge Posner found that “unless [the myVidster users] copy [Flava’s] videos they are viewing on [myVidster’s] websites, myVidster isn’t increasing the amount of [copyright] infringement.”

Judge Posner found that myVidster merely provided the names and links to already copied Flava videos.  The myVidster users that click the bookmark links to “watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct [e.g., myVidster] that doesn’t infringe copyright is not a contributory infringer.” 

Concluding that myVidster was not the copyright infringer (the individuals who uploaded Flava’s videos to the internet were) and that myVidster was not a contributory infringer  (because it did not encourage such uploads), Judge Poser reversed the district court. 

For similar reasons, Judge Posner also found no infringement under 17 U.S.C. § 106(4)—the right “to perform the copyrighted work publicly.”