New Life to Vicarious and Indirect Copyright Infringement Doctrines on the Web

MyVidster posts thumbnails and links to videos that are hosted or posted on other sites. Flava has sued and acquired a preliminary injunction preventing MyVidster from posting thumbnails and links to Flava’s adult videos. Flava complied with the DMCA and sent pull down notices that it alleges were sometimes complied with by MyVidster.

This lawsuit breathes new life into the indirect infringement and vicarious infringement doctrines, because MyVidster does not host of any of the videos that are played or posted by its users. Its users however are able to play the video using MyVidster’s thumbnails. Judge Grady granted Flava an injunction after a two day evidentiary hearing that provided testimony from Phillip Bleicher regarding the following: 1) repeated pull down notices that were not complied with; and 2) repeat offenders that posted links to Flava’s copyrighted content.

MyVidster asserted that Flava could have the copyrighted content removed by going to where the video is hosted. MyVidster has found its appeal of Judge Grady’s preliminary injunction ruling to be supported by Google and Facebook. On the other side, the American Motion Picture Association has supported Flava’s brief in support of the Preliminary injunction ruling.

The key questions is can a website that does not host the videos, but provides links to sites or thumbnails be found liable under indirect and vicarious copyright infringement. The answer according to Judge Grady is yes. Now, should MyVidster be enjoined and found liable will have to be decided by the Seventh Circuit.

Numerous policy issues are implicated including Google and Facebook claiming that the ruling may inhibit the development of the web and other potential Googles and Facebooks. The Seventh Circuit finds itself in the position of making some new law that may implicate the development of the web and video websites.

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