In 2010, Flava Works, an adult entertainment production company, sued MyVidster and won an injunction. But by 2011, it had been overturned . People who ran”tube” websites cheered the decision; video content creators weren’t thrilled.
Touching the Data Stream
According to the ruling, MyVidster didn’t encourage “swapping, which in turn encourages infringement.” The appeals court noted that MyVidster didn’t “touch the data stream.”
A good analogy (used in the ruling) is theater listings in the New York Times; the paper doesn’t “touch the data stream” of the plays or try to recreate them. They are simply giving out addresses where the entertainment can be seen. MyVidster is doing something similar online.
The ruling stated:
Google and Facebook Side With MyVidster
Google and Facebook submitted papers in support of MyVidster, arguing that the site operated as an intermediary. And as such, they shouldn’t be held accountable. Both companies stated that the lower court’s decision could be considered inconsistent with established precedents.
The EFF (Electronic Frontier Foundation) also filed an amicus brief in support of MyVidster. While Google’s and Facebook’s move may be seen as a defensive strategy, the fact that the non-profit EFF is stepping in is a good sign for MyVidster.
Not everyone is on Team MyVidster; Flava Works has a heavyweight on their side as well – The MPAA. The Motion Picture Association of America supported Flava Works an filed a brief urging the court to uphold the original injunction.
Viewing a Video is Not Copying a Video
Another thing to note in this appeals ruling is that a distinction is made about viewing a video and actually copying it to make it more readily available. According to this judgment, since MyVidster only went to an infringing site to look at the video does not mean they should be held liable because they did not copy the video.
The ruling stated: