Last week, the Seventh Circuit found that copyright owners are unlikely to establish that a social bookmarking service is liable for contributory copyright liability, overturning a preliminary injunction granted by the district court.  In an opinion by Judge Richard Posner, the court concluded that merely referring or linking users to an online location containing infringing material is not sufficient to trigger contributory liability. 

The defendant website, myVidster.com, allows individuals to “bookmark” online videos.  According to the decision, the defendant no longer itself hosts online videos, but rather connects users to third-party websites and to servers hosting bookmarked videos.  myVidster.com visitors may view bookmarked videos through a frame that the defendant puts around the video (and which includes ads that the defendant sells for display).  The plaintiffs claimed myVidster was contributorily liable for infringement because infringing copies of plaintiff’s copyrighted videos were accessible through the defendant’s website.

 The Seventh Circuit found there was no evidence that myVidster encourages or assists in the direct infringement of the plaintiff’s videos.  Noting that, “[t]he facilitator of conduct that doesn’t infringe copyright is not a contributory infringer,” Judge Posner rejected arguments that myVidster facilitates additional viewings of illegally uploaded copies of plaintiff’s videos.  According to Judge Posner, the uploaders of such videos are direct infringers, but a myVidster subscriber who views an illegally uploaded video is “no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket.” 

 Notably, the court put aside plaintiff’s claims that myVidster had failed to comply with a “takedown” notice provided to the defendant in accordance with the Digital Millennium Copyright Act of 1998.  Judge Posner explained that “this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor.”  He went on to explain:

It might seem that the mention in the Digital Millennium Copyright Act of “referring or linking users to an online location containing infringing material” expands the concept of contributory infringement to any reference to, or linkage in the sense of facilitating access to, copyrighted material.  But this is implausible, and anyway is not argued by [the plaintiff].  Taken literally it would make the publication, online or otherwise, of any contact information concerning a copyrighted work a form of contributory infringement.  A more plausible interpretation is that Congress wanted to make the safe harbor as capacious as possible—however broadly contributory infringement might be understood, the Internet service provider would be able to avoid liability.

 The court also declined to find that plaintiff was likely to succeed on its claim that myVidster had facilitated or encouraged unlawful public performances of its work, although the court noted that, “[l]egislative clarification of the public-performance provision of the Copyright Act would . . . be most welcome.”  Further, the court noted that the lower court erred by presuming a likelihood of irreparable harm from a showing of copyright infringement.

 The case is Flava Works Inc. v. Gunter.  Both Facebook and Google filed amicus briefs to the Seventh Circuit.