Friday, August 03, 2012

Judge Posner Major Decision on Contributory Infringement

Here's a major decision from Judge Posner of the 7th Circuit Court of Appeals in the USA.

Audio of May 25, 2012 hearing of myVidster's appeal in the 7th Circuit. 
Basically  and oversimplified:

  • 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"

Here's a good 1709 posting pointing out that Canada allows linking to noninfringing material and USA now even to infringing material. And it's worth noting that embedding goes well beyond linking in many ways because the result looks as if it's on the website of the provider of the embedded link.

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.


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