Copyright Infringement, Contributory Copyright Infringement, Preliminary Injunction, DMCA Safe Harbor, Social Bookmarking
Works, Inc. v. Gunter,
689 F.3d 754 (7th Cir. August 2, 2012)(Posner, J.). This appeal concerned a preliminary
injunction issued against a social networking site called “My Vidster”. Plaintiff Flava is a producer of videos of
men engaged in homosexual acts. My
Vidster permitted users of its service to “bookmark” videos that were behind
Flava’s paywall or that had been downloaded by an authorized Flava user and
then uploaded to another server. The
Seventh Circuit clarified that it would adopt the Supreme Court’s eBay Inc. v. MercExchange standard for
preliminary injunctions in patent law cases.
Accordingly, the Seventh Circuit will no longer presume irreparable harm
in considering preliminary injunctive relief in cases where copyright
infringement is shown. As is his wont,
Judge Posner delves deeply into the issue of whether My Vidster can be said to
be a contributory infringer by making it possible for one person to bookmark a
video and concludes that the evidence is not sufficient. The opinion has a good discussion of the
distinction between copying – something Flava was not alleged to have done –
and “facilitating a public performance”.
An important opinion to read because of the important debate over which
players on the internet should have “safe harbor” protection under the Digital
Millenium Copyright Act (DMCA) and which players ought to be more heavily
involved in policing content. Courts
adopting the eBay standard will be
more skeptical, as Judge Posner is, to claims of massive copyright infringement
that are not backed up by solid evidence.
Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here
Friday, August 09, 2013
Copyright Law - Seventh Circuit - Posner Delves Into Bookmarking Homoerotica
Labels: Contributory Copyright Infringement, copyright infringement, copyright litigation, dmca safe harbor, preliminary injunctions, Social Bookmarking
Partner in law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2018-2019). The New York Law Journal called it "an indispensable guide". Board of Directors of the Fordham Law Alumni Association, former General Counsel & Director Federal Bar Association, FBA Chair of the Circuit VPs, ViP for Second Circuit. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.