CHICAGO—The biggest players in the mother of all copyright wars are squaring off not just in Washington, D.C., over bills like SOPA and ProtectIP, but also in courtrooms around the country, where the boundaries of the Digital Millennium Copyright Act are being fought over in bloody, take-no-prisoner battles, and where judges find themselves calling balls and strikes within the framework of a copyright law that, as one amici filer put it, has failed, despite Congressional efforts, to provide a "predictable legal framework" for stakeholders who are frequently at odds with one another.
One such case is Flava Works v MyVidster, which is notable not just for the fact that Google and Facebook, and now the Motion Picture Association of America, among others, have filed amicus briefs with the 7th Circuit Court of Appeals, which is now hearing the case, but also because it involves an adult entertainment company. That last fact is actually not unusual—Perfect 10 cases, for instance, are cited regularly in briefs and motions that attempt to clarify the parameters of the law —but it does remind us once again how significant a player the adult entertainment industry is in the evolution of copyright law, the battle against global piracy and the development of cutting-edge content protection and other business models at the bleeding edge of digital distribution.
Flava Works is not a new case. It dates back to Oct. 2010, when the Miami-based gay content producer filed a copyright infringement lawsuit in the Northern District of Illinois against Marques Rondale Gunter, owner and operator of the "social video bookmarking" website MyVidster.com, and John Does 1-26. In July 2011, District Court Judge John F. Grady granted Flava a preliminary injunction, and used the occasion to publicly rebuke Gunter for his failure to curb repeat infringers, which he said was required by the DMCA in order for MyVidster to qualify for safe harbor protection, as determined by 17 USC §512.
“Gunter does not warn his users about copyright infringement (coyly instructing them not to violate ‘US law’ does not cut it),” wrote Judge Grady in his ruling. “He removes videos from myVidster that are listed in DMCA notices, but goes no further. Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection. It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers.”
Grady also used as cover a 2003 ruling in the Aimster copyright case made by the U.S. Court of Appeals for the Seventh Circuit, the same court now hearing the Flava appeal. In that case, a three-judge panel upheld a lower court's "preliminary injunction against Aimster, holding that the plaintiff would likely be successful at trial in demonstrating that Aimster was a contributory infringer. The service provided by Aimster facilitated the sharing of digital copies of copyrighted music over the Internet by users registered with Aimster, although Aimster did not itself make copies of the music being shared."
Grady wrote, “Gunter’s attitude is similar to that of Aimster, which the Seventh Circuit deemed an ‘ostrich-like refusal to discover the extent to which its system was being used to infringe copyright,’ noting that it was ‘another piece of evidence’ of contributory infringement.”
It is in this context that companies that dwarf Flava Works in terms of any metric find themselves compelled to offer friend-of-the-court opinions. From the point of view of the Googles and Facebooks of the world, as well as the Electronic Frontier Foundations of the world, the goal is to restrict a scenario in which, with respect to the DMCA's repeat infringer policy, "every district and circuit court across the country can conjure up new and unanticipated (not to mention potentially conflicting) standards that those providers must have met, at the risk of losing any protection under the statute.”
Grady, from their point of view, clearly went too far in demanding of Gunter a burden of oversight they do not believe is required by the DMCA. "Courts have emphasized that §512(i) does not create any duty on the part of service providers to police their sites or otherwise make determinations on claims of copyright infringement," wrote EFF in an amicus brief in the current case which it co-filed with Public Knowledge, adding, "§512(i) does not say when and how service providers must terminate the accounts of 'repeat infringers,' nor does it define 'repeat infringer.'"
The stakes for those on the MyVidster side are about as high as they can get. "By implementing the wrong standard for injunctive relief and further confusing the law surrounding 17 U.S.C. §512(i)," stated EFF and Public Knowledge in their Nov. 2011 brief, "the district court order promises to chill innovation and harm the public interest. Accordingly, Amici respectfully request this Court reverse or remand for further proceedings and order the district court to comply with the Supreme Court’s eBay ruling and clarify its treatment of §512(i)."
The eBay case is eBay, Inc. v. MercExchange L.L.C. (2006), in which SCOTUS held that courts cannot "apply 'general rules' when determining whether to issue injunctive relief; in other words, not decide equity through formulas. Unfortunately, the district court below did just that when it issued its injunction, applying general rules to at least three of the four preliminary injunction standards."
Needless to say, the MPAA in its brief sees the matter very differently, arguing against EFF's insistence "that myVidster had no obligation to terminate the accounts of any of its users. This approach flouts the plain language of the DMCA and its legislative history and would render the statute’s instruction to terminate repeat infringers’ access a nullity."
The MPAA also contests arguments made by amici Google and Facebook, including, among others, their claims that "myVidster is not a contributory infringer because, they claim, myVidster’s users did not engage in direct infringement, and instead at most were secondary infringers. Amici go on to argue that myVidster cannot be 'tertiarily' liable for the direct infringement of the third parties whose servers hosted the infringing copies that myVidster users embedded links to."
In terms of the significance of this case, the MPAA, like its equally influential opponents, believes the stakes cannot be overstated.
"Contrary to the assertions of myVidster and amici Google and Facebook, search engines and social networking sites are not the only businesses that desire certainty in a challenging online marketplace," they state. "MPAA member companies and other producers of creative works also need a predictable legal landscape in which to operate. Reversing the district court’s ruling would enable businesses to benefit from infringing public performances and displays of audiovisual works without paying for licenses or incurring any cost to offset the cost of producing content. Such a ruling would undermine incentives for disseminating creative works in digital formats and would encourage infringers to seek to profit from the works of others. This Court should affirm. The district court’s ruling helps preserve the crucial balance essential for copyright law's success in the digital age."
In an announcement released today on the filing by the MPAA of its brief in support of his company's position, Flava Works CEO Phillip Bleicher said, "This is a simple case of Marques Gunter using his website MyVidster.com as a vehicle to commit and contribute to massive amounts of theft. He is running a media distribution platform based on stolen content that directly competes with guys like us."
The statement also notes that Flava Works is suing the web host Voxel.net and LeaseWeb.com "for failing to remove MyVidster.com from its servers despite dozens of DMCA notices alerting Voxel.net and LeaseWeb.com that Gunter was a repeat infringer. Under DMCA, safe harbor no longer applies to sites that fail to remove repeat infringers."
The MPAA amicus brief can be found here.