Thursday, August 09, 2012

myVidster muddies the waters

The indexing website myVidster.com (with a helping hand from Google and Facebook) have had a preliminary injunction vacated in the US in respect of the gay porn company / site Flava Works.

Without digging into the detail it is fair to say that Flava provided highly "specialist" content which was protected behind a pay wall - the typical niche content model online.

myVidster.com provided a service which indexed videos provided by others, crucially did not host the videos, but did provided a "skin" for the video, or player if you like, which would carry embedded advertising. So a single video indexed and shared on myVidster.com basically blows out of the water any attempt by Flava to sell that video online.

At first instance the district judge awarded the injunction on the basis that myVidster.com was a contributory infringer in respect of copyright.

Judge John F Grady, in a colorful judgement, went the other way on the following basis;

1. He decided there was no copyright infringing act; "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 theatre and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn't infringe copyright is not a contributory infringer."
2. myVidster.com activities were too remote.
3. On the facts myVidster.com did not sufficiently contribute to the transmission of the copyright infringing material to the public.
4. There was a general lack of evidence to support other claims by Flava that might have been successful.

On the face of it common sense dictates that myVidster.com are clearly making money from the infringement of other peoples copyright but the technical evidence and arguments were not sufficiently in place to win on this occasion.