Website with links to infringing videos does not violate copyright laws, court rules

Amanda Simmons | Content Regulation | News | August 3, 2012

A social media website on which users have provided links to copyrighted videos from third-party servers has not itself violated copyright laws, a federal court ruled yesterday.

Although the case involves copyright claims for adult entertainment videos originally made by Flava Works, a gay pornography production company, the court’s ruling could also affect online news publishers that embed or link to other kinds of copied content.

Flava sued, a “social bookmarking” site, in 2010, claiming that it violated copyright laws by enabling its users to share illegally copied videos with one another, bypassing the production company’s pay wall. Videos accessed through myVidster, including those copied and uploaded from Flava Works, are viewed through a frame the site builds that hosts its advertisements. However, the videos themselves are actually streamed from a third-party server and never hosted directly by myVidster.

The U.S. Court of Appeals in Chicago (7th Cir.) found that the infringer is not myVidster or those who view the videos on its site, but rather the paying Flava customer who copied the production company’s copyrighted video by uploading it to the Web.

"The infringers are the uploaders of copyrighted work," wrote Judge Richard A. Posner in the court’s opinion. "There is no evidence that myVidster is encouraging them, which would make it a contributory infringer," or in other words, " an infringer's accomplice."

The court explained that as long as myVidster's users do not duplicate the videos embedded on the site, they are not violating Flava’s exclusive right as the owner of the copyright to reproduce and distribute its works to the public.

“Someone 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 copy-righted movie without buying a ticket,” wrote Posner. “The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.”

Gregory J. Leighton, an attorney whose firm, Neal, Gerber & Eisenberg, represents myVidster, said that the court's ruling could affect anyone who uses the Web, from giant Internet companies to each of their individual online users.

“Linking is obviously a critical part of how the Internet functions,” he said. “So for content owners to sort of be able to assign strict copyright liability for a simple act of linking has tremendous implications.”

Leighton added that had the court sided with Flava, he thinks the company and other like-minded organizations could have tried to go after news media websites that use embedded links as well.

“I certainly think there are instances where perhaps the law isn’t as clear and is hard to interpret when put in the context of modern technology,” he said. “It could be incredibly chilling to the way we use the internet right now.”

The three-judge panel’s unanimous ruling reverses a lower court’s 2011 decision, which ordered myVidster to temporarily stop embedding videos from Flava after finding that the site encouraged its users to share illegally obtained content.

Flava Works CEO Phillip Bleicher did not return a request for comment.