Bookmarking Video Not Contributory Infringement

An online social bookmarking service that allows users to provide links to copyrighted materials behind a pay wall is not a contributory infringer, the Seventh Circuit found.

  myVidster.com’s users bookmark videos on the Internet that are displayed as thumbnails on the website.  When a user clicks on the thumbnail, the video is played but the video is “framed” with advertisements from myVidster.com.  The website was sued for contributory copyright infringement by Flava Works, Inc., which produced and distributed some of thebookmarked videos.  Flava Works sells the videos on its own website behind a pay wall.  The trial court granted Flava a preliminary injunction to stop the bookmarking.

The appellate court reversed, rejecting Flava’s claim of contributory copyright infringement because “myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work.  The infringers are the uploaders of copyrighted work.  There is no evidence that myVidster is encouraging them, which would make it a contributory infringer.”

Judge Posner found that myVidster was no different than a telephone exchange connecting two telephones because the site was not copying the videos.  The judge noted that the viewer’s “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 is it not copyright infringement.  The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.”

The judge found that the viewer on myVidster “who uses one of those addresses to bypass Flava’s pay wall and 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 that doesn’t infringe copyright is not a contributory infringer.”

Flava Works, Inc., v.Marques Rondale Gunter, dba myVidster.com; and SalsaIndy, LLC, 7th Cir. No. 11-3190, issued August 2, 2012.