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District Court Enters a Preliminary Injunction Against Social Networking Site for Contributory Infringement of Adult Entertainment Videos

Wednesday, August 17, 2011

Laura McQuade | Bloomberg Law Flava Works, Inc. v. Gunter, No. 10-CV-06517, 2011 BL 202530 (N.D. Ill. July 27, 2011) In a case involving the alleged contributory and vicarious copyright infringement of adult entertainment content on the social networking site, myVidster.com, the U.S. District Court for the Northern District of Illinois entered a preliminary injunction against defendants.

Flava Works' Allegations of Copyright Infringement

Flava Works produces and distributes adult entertainment DVDs, streaming video, magazines, photographs, and website content. MyVidster is a social networking website that offers members inexpensive storage space for videos and allows members to bookmark videos and post links to websites. Flava Works alleged that myVidster users have uploaded its copyrighted videos and images, or links to those videos, without authorization. The vast majority of videos on the site are hosted on third-party servers and merely accessible through myVidster, however, some of the videos were stored on myVidster's servers. Flava Works sent defendants takedown notices pursuant to Section 512 of the Digital Millennium Copyright Act ("DMCA") in which it specified the infringing material present on the myVidster site, and demanded that it be immediately removed. Flava Works also identified users to defendants that it believed were repeat infringers. Flava Works sued defendants, claiming that by offering low-cost video storage space and encouraging users to share videos, myVidster intentionally made it more difficult for copyright owners to police myVidster for infringing content. Flava Works further claimed that myVidster did not have any filters to prevent material from being re-posted by repeat infringers, nor did it take action to stop repeat infringers. The court dismissed Flava Works's direct infringement and inducement of infringement claims, leaving the contributory infringement claim intact. The court also dismissed plaintiff's vicarious infringement claim with leave to replead. For a discussion of this decision, see Court Dismisses Direct and Vicarious Infringement Claims Made by Adult Film Company Against Social Networking Site but Allows Contributory Infringement Claim to Proceed, Bloomberg Law Reports—Intellectual Property, Vol. 5, No. 21 (May 23, 2011). Flava Works subsequently moved for an injunction on its contributory and vicarious infringement claims.

Court Orders a Preliminary Injunction on Flava Works's Contributory Infringement Claim

A contributory copyright infringer is "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." Flava Works at 14 (quoting Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159 (2d Cir. 1971)). For contributory infringement, the "knowledge" of infringement may be actual or constructive knowledge and "willful blindness" also constitutes knowledge. See In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003). Moreover, where a website operator has been informed of infringement and fails to do anything to prevent future infringement, that operator may be liable for contributory infringement. See Monotype Imaging, Inc. v. Bitstream Inc., 376 F. Supp. 2d 877 (N.D. Ill. 2005). In granting the preliminary injunction on Flava Works's contributory copyright infringement claim, the court found that defendant Marques Rondale Gunter, the owner and operator of myVidster, was "not wholly cooperative" upon receiving Flava Works's takedown notices. Id. at 16. Moreover, Gunter "failed to implement filters or identifiers to prevent repeated infringing conduct and failed to take action against, or properly investigate and/or disable the accounts of, myVidster users whom plaintiff identified as repeat infringers." Id. at 16-17. The court referred to myVidster's actions with regard to infringement on its site as the "epitome of willful blindness." Id. at 17. The court concluded that Flava Works had shown a likelihood of success on its contributory copyright infringement claim. The court further explained that myVidster did not qualify for any of the safe harbor defenses under Section 512 of the DMCA because they failed to meet one of the threshold requirements—adoption and reasonable implementation of a repeat infringer policy. "It is difficult for us to understand how defendants can argue with a straight face that they have adopted and reasonably implemented a 'repeat infringer' policy." Id. at 21. The court cited Gunter's fundamental misunderstanding of copyright law on which his repeat infringer policy was based: "[Gunter's] understanding of the term 'infringer' does not encompass the law of copyright; he operates his site under the mistaken view that an 'infringer' is limited to a person who posts content that is hosted on a password-protected or private website." Id. Having found that defendants did not qualify for safe harbor under the DMCA, that plaintiff was likely to succeed on its copyright infringement claim, and that defendants had failed to rebut the presumption of irreparable harm, the court granted Flava Works's request for a preliminary injunction. The court declined to address the merits of Flava Works's vicarious copyright infringement claim on this motion.
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