Flava Works, Inc v. Marques Rondale
689 F.3d 754
7th Cir.2012Background
- This case concerns myVidster’s social-bookmarking service and Flava Works’ copyright claim against it.
- District court granted a preliminary injunction on a theory of contributory infringement; the court treated likelihood of success as central to the decision.
- myVidster’s service bookmarks videos hosted elsewhere and presents thumbnails that link to the original servers, with viewing occurring from those remote servers.
- Flava alleges the bookmarking and linking enable access to unauthorized copies behind Flava’s paywall; myVidster stopped the backup copying service but remains potentially liable for past acts.
- The panel vacates the injunction, finding insufficient basis to conclude contributory infringement or substantial contribution to infringement on the record, and notes avenues for remand on direct infringement and other grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is myVidster a contributory infringer? | Flava argues bookmarking/links facilitate infringement by directing users to infringing copies. | myVidster contends it merely provides links and does not copy or induce copying; safe harbor arguments apply. | No; record insufficient to show substantial contribution or inducement of infringement. |
| Does DMCA safe harbor apply to myVidster? | Safe harbor should not protect a contributor; notices were ignored. | Safe harbor may shield providers that refer/link to infringing material if conditions met. | Irrelevant absent a finding of contributory infringement; not dispositive on remand. |
| Should the “public performance” issue be resolved as uploading or receiving? | Flava contends either uploading or receiving could constitute public performance. | MyVidster could be facilitating public performance only if it meaningfully contributes when viewing occurs. | The record does not support a finding that myVidster’s activity constitutes a public performance. |
| Is there evidence of direct infringement by myVidster’s back-up service? | Backup service copied videos in violation of Flava’s rights. | Back-up service constitutes direct infringement; the district court did not base relief on it. | The injunction should be vacated; remand possible for direct infringement grounds. |
Key Cases Cited
- Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (Supreme Court 2005) (contributory infringement framework; intent over consequence)
- eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (Supreme Court 2006) (no presumption of irreparable harm in injunctions; standard refined for IP)
- In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003) (file-sharing case informing contributory infringement analysis)
- Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) (importance of whether service facilitates infringement, not merely provides access)
- Jartech, Inc. v. Columbia Artists Management, Inc., 666 F.2d 403 (9th Cir. 1982) (obliquely discusses copyright as a type of contract and control over copies)
- Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010) (discussion of injunctive standards in copyright cases)