Judge Richard Posner ruled that MyVidster didn’t embolden copyright infringement by encouraging video trading.

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: To call the provision of contact information transmission or communication and thus make MyVidster a direct infringer would blur the distinction between direct and contributory infringement and by doing so make the provider of such information an infringer even if he didn’t know that the work to which he was directing a visitor to his website was copyrighted.

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: As long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies … of the copyrighted work to the public.” His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.