Lawsuits Make Strange Bedfellows: MPAA, Porn, and Infringement - Intellectual Property Law - U.S. Seventh Circuit
U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

Lawsuits Make Strange Bedfellows: MPAA, Porn, and Infringement

The Motion Picture Association of America has joined forced with Flava Works, a gay porn production company, in a copyright infringement lawsuit over a website that allowed users to upload embedded links to porn videos. The case is now on appeal to the Seventh Circuit Court of Appeals.

Flava Works claims that myVidster.com, a social video bookmarking site, infringed on its copyrighted material by embedding Flava Works' videos on myVidster and reaping the ad revenue rewards. Last year, a federal judge in Illinois agreed, and ruled that myVidster was not protected under Digital Millennium Copyright Act (DMCA) safe harbor provision.

Here's how myVidster works: When a user submits a video to be posted on myVidster, myVidster "crawls" the host website, pulls information about the video file, and either copies or creates a thumbnail image of the video. MyVidster then embeds the video -- instead of a link to the original site -- on its own site. When a myVidster visitor clicks on a video that is posted there, the video plays directly on myVidster.

Flava Works discovered numerous myVidster pages with embedded Flava Works videos that were streamed through third-party hosting sites, and sent myVidster DMCA takedown notices. MyVidster claimed that it complied with the takedown notices, but Flava Works later filed a copyright infringement lawsuit against the site, Ars Technica reports.

The question before the Seventh Circuit Court of Appeals is whether there's distinction between embedding videos and hosting videos as a direct infringer. Google and Facebook -- the usual online heavyweights -- argued in an amicus brief that the court should recognize such a distinction. The brief asserted, "In order to be liable as a direct infringer of the exclusive right of public performance, one must transmit or otherwise communicate the copyrighted work in question. With respect to 'embedded' videos, myVidster does not transmit or otherwise communicate the copyrighted video; a third-party site does." (Brief thanks to The Hollywood Reporter's Hollywood, Esq.)

The MPAA, however, maintains that myVidster is "an unlicensed on-demand, internet-video service that generated advertising and other revenues by attracting an audience for infringing content," and that myVidster infringed on copyrighted material by embedding the videos, even if it didn't host the content, reports The Hollywood Reporter.

The outcome in this case could change how people enjoy social media. Bloggers and Facebook users frequently embed videos -- potentially in violation of copyright law -- on their personal pages. If the Seventh Circuit Court of Appeals affirms the district court's decision in this case, Facebook and Google could be held liable for embedded content.

Related Resources: