|Flava Works, Inc v. Gunter|
|Court||United States District Court for the Northern District of Illinois|
|Full case name||FLAVA WORKS, INC. v. MARQUES RONDALE GUNTER d/b/a myVidster.com; SALSAINDY, LLC; VOXEL DOT NET, INC., and JOHN DOES 1-26.|
|Citation(s)||10 C 6517|
|Judge(s) sitting||John F. Grady|
Flava Works, Inc v. Gunter is a decision by the United States Seventh Circuit Court of Appeals, authored by Judge Richard Posner, which held that Marques Gunter, the sole proprietor of the site www.myVidster.com, a social bookmarking website that enables its users to share videos posted elsewhere online through embedded frames, was not liable for its users' sharing and embedding of copyrighted videos. The court of appeals reversed the decision of the United States District Court for the Northern District of Illinois, which had granted a preliminary injunction against myVidster, citing sufficient knowledge of infringement on Gunter's part, while denying safe harbor defense under the Digital Millennium Copyright Act (DMCA). The Court held that Gunter was not directly liable because the copyrighted content was not stored on myVidster's servers, and was not contributorily liable because there was no evidence that conduct by myVidster increased the amount of infringement.
Flava Works is an adult entertainment company producing pornographic videos and images featuring black and Latino men. It owns several registered copyrights and trademarks. Part of Flava Works' business includes streaming video through its various websites. In 2010 Flava Works filed a complaint against myVidster, a website allowing users to post videos to be searched and viewed by other users. The complaint contained seven counts of infringement:
Flava Works alleged that by not policing his site properly, MyVidster's sole proprietor Marques Gunter "purposefully created a system that makes it more difficult for copyright owners to monitor the site for infringement."  In late 2010 Flava Works sent Gunter and his web hosting companies a number of takedown notices under the DMCA, these notices included the user names of repeat posters of infringing content. Flava Works did not contest that Gunter removed offending content from this site, but complained that Gunter did nothing to stop repeat offenders, allowing infringing work to continually appear on his website.
In district court's response to Gunter's motion for dismissal on May 10, 2011, the court dismissed 6 of the 7 counts of copyright and trademark violations claimed by Flava Works, leaving only the count of contributory copyright infringement. Judge John F. Grady: "The plaintiff alleges... after having received the notices of defendants failed to act to prevent future similar infringing conduct...", further "it [plaintiff] also alleges that MyVidster has no filters or identifiers in place to prevent infringers and that it took no action to stop or ban of the repeat infringers who allegedly posted plaintiff's copyrighted works. These allegations are more than sufficient to allege material contribution."
The court granted a preliminary injunction on July 27, 2011 against MyVidster citing sufficient knowledge of infringement on Gunter's part to support contributory infringement claims, while denying DMCA safe harbor defense based on Gunter's failure to take meaningful action against repeat infringers. The court satisfied the requirement for material contribution to infringing activity through the basic nature of the MyVidster site: "Gunter provides the MyVidster site, which enables the display of embedded videos and thus the infringement. Gunter also makes video storage (which involves making a copy of the video) available for free." The court further supported its contributory infringement holding by citing Gunter's inevitable knowledge of the infringement that was occurring on his website: "We also have no doubt that defendants knew or should have known of the infringement occurring on MyVidster."
Gunter claimed safe harbor for defense under the DMCA, specifically the safe harbor offered by the Online Copyright Infringement Liability Limitation Act applying to online service providers with "information residing on systems or networks at [the] direction of users", . To qualify for this defense, one must show that they have "...adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers...", according to .
The court drew specific issue with Gunter's repeat violator policy of removing content that originally existed behind a pay wall, and sending the violator an e-mail warning. The court took issue both with the incompleteness of this policy and the fact that it did not address copyright law: "Gunter's 'repeat infringer' policy is in fact no policy at all, at least with respect to copyright infringement." The court commented that Gunter's "perspective is the epitome of 'willful blindness'", further "his definition of 'repeat infringer' does not encompass copyright law."
On September 1, 2011, the court denied Gunter's motion for reconsideration of their July 27, 2011 injunction. Gunter claimed that the holding of the Court was in direct contradiction to the United States Court of Appeals for the Ninth Circuit decision in Perfect 10, Inc. v. Amazon.com, Inc., and that myVidster users had committed no direct infringement, and therefore Gunter could not be responsible for contributory infringement. The majority of myVidster users did not actually save copies of infringing material, but rather used in-line linking to post videos. While the Perfect 10, Inc. v. Amazon.com, Inc. did involve the in-line linking of content, the court declined to apply this precedent to the case, citing that:
The court drew distinction between the conduct of Google and myVidster users, portraying Google's activity as a neutral search algorithm while myVidster users "handout-pick" content.
The case was appealed to the Seventh Circuit Court of Appeals - argument was heard on May 25, 2012; a decision was rendered on August 2, 2012, vacating the district court's grant of a preliminary injunction. The case gained notoriety after Google, Facebook, and the Motion Picture Association of America (MPAA) filed amici briefs with the Court of Appeals.
The Court, presided by Judge Posner, held that Flava Works failed to establish substantial likelihood of success on the merits of its contributory infringement claim. Grounds of the ruling included -
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