Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6517 Slip. Op. (N.D. Ill. Sep. 1, 2011) (Grady, J.).
Judge Grady denied defendant’s motion to reconsider its preliminary injunction, for the following reasons:
The Court addressed defendant’s arguments even though they “could and should have been” brought in the original briefing.
Defendants’ argument was too narrow. Someone who linked the copyrighted material can be a direct infringer. The alleged direct infringement of defendant’s customers, therefore, can be true whether the myVidster owner saved the copyrighted file or embedded a link to it.
Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6517, Slip Op. (N.D. Ill. May 10, 2011) (Grady, J.).
Judge Grady granted in part defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Flava Works’ complaint in this copyright case involving adult entertainment on the internet.
Defendant Gunter operates myVidster.com where users could post content, including the allegedly infringing videos. But, as an internet service provider ("ISP") Gunter was not liable for his user’s copying. And Flava Works did not allege that Gunter copied. The claim was, therefore, dismissed.
Flava Works could not rely solely upon its DMCA take down notices to defendants – even multiple notices – to prove either actual or constructive knowledge of the infringement. Flava Works, however, showed knowledge based upon seven notices it sent to defendants over seven months, in addition to the DMCA takedown notices. The contributory infringement count was, therefore sufficiently pled.
Flava Works did not sufficiently plead defendants’ direct financial interest in the alleged infringement. Flava Works did allege that defendants’ inexpensive storage space and video sharing attracts customers. But Flava Works did not allege that the presence of the allegedly infringing material drew customers.
The Court dismissed Flava Works’ inducement claim. It was a "formulaic recitation" of the standard void of facts showing an infringing purpose of active steps fostering infringement.
False Designation & Trademark Infringement
Defendants’ alleged posting on their website of Flava Works’ videos containing Flava Works marks did not constitute a use in commerce.
Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6517, Slip Op. (N.D. Ill. Jul. 27, 2011) (Grady, J.).
Judge Grady granted plaintiff Flava Works’ motion for a preliminary injunction in this copyright case involving adult movies, and ordered the parties to confer on language for the preliminary injunction. Defendants’ myVidster website is a "social video bookmarking" site which allows users to post or link to video content. When a user posts or links to the content, myVidster crawls the website hosting the video to gather data about the video, creates a thumbnail image of the video and embeds the video on the myVidster site.
Likelihood of Success
The Court held that there was a likelihood of success on at least Flava Works’ contributory copyright infringement claim. It could not be "seriously disputed" that third parties have directly infringed Flava Work’s works by posting video content on myVidster. And defendants knew or should have known about the infringement based upon Flava Works’ seven DMCA take down notices outlining instances of the infringement to defendants. In fact, the email exchanges surrounding the notices show that defendants were not cooperative in addressing the notices. And myVidster’s repeat infringer policy was the "epitome" of willful blindness. Furthermore, there was significant evidence that defendants encouraged the infringement. For example, myVidster encouraged sharing of video content without warning of potential copyright infringement issues.
Defendants were not protected by the DMCA’s safe harbor provision. A threshold requirement for safe harbor is that a party adopt and reasonably implement a policy providing for termination of users that are repeat infringers. Defendants policy did not require or directly provide for termination of repeat infringers. And defendants did not consider copyright infringement to be part of the defintion of "infringer."
Defendants failed to rebut the presumption of irreparable harm in copyright cases. Flava Works’ did not delay in bringing the suit and then the injunction motion. Prior to filing suit, Flava Works attempted to resolve the issue with several DMCA take down notices and the Court would not penalize Flava Works for attempting to avoid litigation.