Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals decided to overturn a lower court’s ruling which granted a preliminary injunction against myVidster last year.
The original injunction, granted by Judge John F. Grady, came only two months after he dismissed six out of seven violations claimed by the copyright owner, Flava Works. The court found that Marques Gunter, the sole proprietor of myVidster, had not provided adequate means for copyright owners to take action against repeat offenders.
“Gunter’s ‘repeat infringer’ policy is in fact no policy at all,” wrote
Grady in his memorandum opinion. “There is ample evidence that after having received the DMCA notices from plaintiff, defendants failed to act to prevent future similar infringing content.”
Existing federal law — namely, the Online Copyright Infringement Liability Limitation Act
— protects online service providers like Gunter from prosecution when they are ruled to have taken these necessary legal steps.
In April, the Motion Picture Association of America (MPAA) joined in filing an amicus brief
in support of Flava Works.
“Rather than discouraging infringement,” wrote the MPAA, “myVidster advertised the availability of infringing material, including mainstream motion pictures.”
However, several other organizations came to myVidster’s defense. Google and Facebook feared
Grady’s ruling would stifle innovation on the Web but refused to explicitly support either party in the case. The Electronic Frontier Foundation, too, filed
an amicus brief in support of the social video book-marking website’s innocence.
Judge Richard Posner concurred with the latter group of sentiments. He noted in his ruling, on behalf of a unanimous three-judge panel, that myVidster “doesn’t touch the data stream” and, further, was “not encouraging swapping.”
“MyVidster is giving web surfers addresses where they can find entertainment,” wrote
Posner. “By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. … Is myVidster doing anything different?”
He also explained that even the website’s visitors cannot possibly be charged with copyright:
Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster’s visitor. But 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.
And supporters of Posner’s ruling are already making newer parallels.
Richard O’Dwyer, 24, founder of TVShack.net, faces extradition to the U.S. on similar charges of copyright infringement. O’Dwyer, like Gunter, merely linked to videos hosted on other websites. The case is highly contested due to the fact that TVShack.net did not host any copyrighted material. U.K. Home Secretary Theresa May
approved the extradition even though none of O’Dwyer’s alleged crimes were committed in the U.S.
reported on a poll
taken in early July revealing that only nine percent of the British public wants O’Dwyer to be extradited, and of those questioned an astounding 46 percent do not believe he should be prosecuted at all.