- this was an appeal from a preliminary injunction
- myVidster serves a similar function as YouTube, but is doesn't host or store anything (it used to do so for premium users but has stopped and this decision doesn't deal with that scenario)
- myVidster allows users to embed links to videos, some of which may be infringing videos.
- myVidster does not host infringing videos or invite infringing links or specialize in any type of video.
- Only actual infringement is by those up upload the infringing material to a server somewhere - which is not myVidster.
- Also no "public performance" - and suggests that this provision needs legislative clarification
- Posner holds that there is no infringement by either myVidster or myVidster users/members who merely watch and don't download infringing videos
- Therefore, no contributory infringement by myVidster.
- DMCA irrelevant because "a noninfringer doesn't need a safe harbour"
Anyone curious about the comparison of the American "contributory infringment" doctrine and the Canadian "authorization" concept can read my brief filed in the Grokster case in the US Supreme Court in 2005.