Flava 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.
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