Drawing the Digital Line: Why Social Bookmarking is not Copyright Infringement

Social bookmarking websites provide users that have similar interests with a dumping ground to share the web addresses of third-party websites that provide free access to, inter alia, copyrighted content. Bookmarking sites do not host any content on their own servers, however, but merely function as a gateway to where material, sometimes copyrighted, can be found on the Web.

Flava Works, a gay porn production company, sued myVidster, a social video bookmarking website, after discovering that myVidster users were sharing websites that host illegal copies of its copyrighted videos, thereby bypassing Flava’s pay wall and allegedly reducing their income by about $100,000.[1] During trial, the district judge granted a preliminary injunction in favor of Flava Works after finding that myVidster’s social bookmarking operation made them an infinger’s accomplice.[2]

The Seventh Circuit Court of Appeals vacated the preliminary injunction because it held that myVidster merely provided information and that, without more, this was not evidence of direct or contributory infringement.[3] Firstly, the Copyright Act makes it unlawful to “perform . . . transmit or otherwise communicate a performance of the [copyrighted] work . . . to the public. . . .”[4] On appeal, Judge Posner compared the role of myVidster to a newspaper, stating that, “By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not ‘transmitting or communicating’ them.”[5] Similarly, myVidster, like the New Yorker, is merely disseminating the name and address of websites that host, inter alia, Flava’s videos. Accordingly, because myVidster is not actually transmitting, performing, or communicating Flava’s videos on its website, its operation did not amount to direct infringement.

Consistently, the Seventh Circuit Court of Appeals also held that myVidster is not liable of contributory infringement. Contributory infringement is “personal conduct that encourages or assists the infringement.”[6] Again, Judge Posner found that myVidster only gave web surfers the hyperlinks to where they can find free Flava videos but found no indication that myVidster “encourages or assists”  its users to copy or distribute Flava’s videos. As Judge Posner put it, “Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket.”[7] Essentially, websites like myVidster are not contributory infringers because their operation’s purpose, to provide information, does not amount to or facilitate infringement.[8] The infringers in this case are the persons who upload and host illegal copies of Flava’s material. [9]

With all that explained, there still seems something inherently wrong with what social bookmarking websites do. Their entire operation seems like a conspicuous way to facilitate online pirating. However, because they are not actually hosting any illegal copies on their own servers, they are not deemed to “communicate, transmit, or perform” the work and, thus, cannot be deemed direct infringers. No objections there, since their role is, in fact, that of an intermediary. Nevertheless, it seems like Judge Posner used the same reasoning to also justify why they are not contributory infringers. His exact words, “The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.”[10] In other words, if myVidster’s conduct did not directly infringe Flava’s copyright than, according to Posner, they cannot be found to contributory infringe. Apparently, the line between direct and contributory infringement, thus, does not even exist.

However, if the direct infringement is the illegal copy being linked to, why is myVidster not partly to blame for increasing the web traffic directed to the infringer’s domain? This certainly seems to constitute assisting the infringement. Accordingly, Posner leaves the intellectual property advocates in despair with this opinion by providing a veil for social bookmarking operations. On the other hand, social networks like Facebook would be prudent to argue this logic if, for instance, they are defending against a suit where one of their users link to pirated materials.

[1] Flava Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826, at *6 (7th Cir. Ct. App. Aug. 2, 2012).

[2] Id. at *1.

[3] Id.

[4] Id. at *7.

[5] Id.

[6] Id. at *4.

[7] Id.at *3.

[8] See id.

[9] Id.

[10] Id. at *3.

Author: Sam Hanna

After earning a Bachelor's degree, cum laude, in Jurisprudence from Montclair State University, I enrolled in Rutgers University School of Law | Newark to fulfill my childhood aspirations of becoming a civil rights litigator. After taking one class in Employment Law, I became deeply interested in the legal issues that arise in the context of the employer-employee relationship (e.g., discrimination; retaliation; whistle-blowing; sexual harassment; wrongful discharge; and so on). This interest led me to seek an internship with the United States Equal Employment Opportunity Commission ("EEOC"), where I assisted field investigators and trial attorneys by researching and answering substantive and procedural questions relating to the enforcement of Title VII of the Civil Rights Act of 1964; the Equal Pay Act; the Age Discrimination in Employment Act; and the Americans with Disabilities Act. The summer following my internship at the EEOC, I worked as a law clerk at Hyderally & Associates - a plaintiff's side employment law firm - where I assisted with all aspects of seeking recourse for victims of workplace discrimination and retaliation, including responding to and making discovery requests, drafting motion briefs, and drafting memoranda on various legal issues. Wanting to expand my experience outside of employment law, I accepted a law clerk position with Levy Ratner, P.C. - a labor law firm in New York dedicated to representing labor unions in negotiations for collective bargaining agreements and union employees in disputes with management. Following law school, I hope to clerk for a civil court trial judge to gain experience in civil litigation and then hope to start a career as a labor and employment lawyer. Outside of my experience in labor and employment law, I also interned for the Honorable Chief Justice Stuart Rabner of the New Jersey Supreme Court and worked as a law clerk for the Essex County Prosecutor's Office. Other areas of law that I thoroughly enjoy include criminal procedure (and constitutional law in general), securities, and commercial law. For the Rutgers Computer and Technology Law Journal, I serve as a Notes & Comments Editor and mentor for the Associate Editors.

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