Internet Trends: Linking is not Copying (In the 7th Circuit, anyway)

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Here’s another Internet copyright conundrum.¬† Assume you have a social networking web site where you let users post links or bookmarks to their favorite videos from all over the Internet.¬† To view the videos, a visitor clicks on a link and the video is streamed into a video frame much like you see on YouTube.¬† Many of your users post links to legitimate videos but some also post links to videos that were copied without the permission of their owners.¬† Remember, your web site and your servers contain only links to the videos, not copies of the videos themselves.¬† Are you liable for contributory copyright infringement by permitting users to post links to infringing videos?

The answer to this question is not obvious.¬† Is a streaming video an infringing copy of the work?¬† Is either posting the link or streaming the video a prohibited public performance?¬† In a recent appellate opinion, Judge Posner of the Federal Circuit Court for the Seventh Circuit has offered a solution.¬† In Flava Works, Inc. v. myVidster.com (7th Cir. 2012), the plaintiff sued myVidster for contributory infringement. myVidster operates a website similar to our hypothetical video sharing site.¬† Flava Works contended that myVidster contributed to copyright infringement by permitting users to post links to illegal copies of pornographic movies.¬† Ordinarily, such films are available only in Flava Works’ web site and only if the viewer paid to see them.¬† The lower court granted Flava Works a preliminary injunction, concluding that it was likely that it would prevail in proving that myVidster was a contributory copyright infringer.¬† Judge Posner disagreed and vacated the order.

Judge Posner concluded that posting a link was not the same as posting a “copy” of the infringing work.¬† The video, Judge Posner reasoned, is being transmitted from a third-party’s server to the viewer’s computer.¬†¬† myVidster, according to the court, was not hosting videos and never touched the video streams. The court wrote that the infringer is the individual who uploaded it to the third-party’s server, not myVidster, and not MyVidster’s visitor:

As long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act … Someone who uses one of those [links] 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.

The question of whether myVidster is contributorily liable for an infringing “public performance” was not as clear to the judge, particularly as to whether the process of making the videos available to the public by uploading them could be interpreted under the Copyright Act as a public performance.¬† On that score, Judge Posner, concluded that the law was ambiguous.¬† On the other hand, it was clear to the court that myVidster could not be construed as offering a public performance by providing lists of links for viewing videos.¬† Judge Posner wrote that myVidster is no more liable than the New Yorker is for providing theater listings:

By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not “transmitting or¬† communicating” them.

For now myVidster gets off the hook but If you’re interested in this topic, Judge Posner’s reasoning is as entertaining as it is interesting.¬† Learn more about copyright law from the opinion, which can be downloaded from this link.

— Adam G. Garson, Esq.

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