This past week, myVidster.Com
was hijacked by Dutch cyber-pirates, and the owners were really
happy when it came back on line Friday. This is because,
putting aside the hijacking, August was a pretty good month for
myVidster.Com, thanks in large part to 7th Circuit Court of Appeals
Justice Richard Posner.
MyVidster.com is the latest social media site to become the
latest social media site. It allows users to engage in
"social bookmarking," which involves internet citizens
sharing hyperlinks to online materials in which they may share a
mutual interest. In other words, it's a porn site.
Well, maybe that's not completely fair. Users find
all sorts of videos stored in various places on the web, and then
share links to it. For example, I might put a video of a cat
on my firm's server, and a myVidster.com user who likes cats
might find that video and share a link. Then, other
feline-inclined myVidster.com users would click on the link and
watch the video. Although the cat video is being streamed
directly from its original location on my firm's server, the
myVidster.com user sees it as though it is appearing on
myVister.com, that is, surrounded by a frame that contains ads sold
by myVidster.com. Here's how Judge Posner described
It's like YouTube, except that
YouTube hosts the videos it provides access to and myVidster as we
know does not. Another difference, however, is that YouTube refuses
to provide access to pornography, and myVidster, as we also know,
is not so choosy—on the contrary. It's true that its
home page, www.myvidster.com/ (visited July 4, 2012), lists videos
that range from the fighting in Syria to "Obamacare" and
"Ugliest Tattoos" and "Why You Should Spiral-Cut
Your Wiener" (and yes, that really is about hot dogs), with
nary a pornographic video among them. But this is misleading,
because in the default setting on myVidster (the setting when you
first click on its website) the "family filter" is turned
on; if you turn it off, your visit will reveal a mixture of
pornographic and nonpornographic videos, with the former
predominating . . .
The occasion for Judge Posner's description was a suit
brought by porn company FlavaWorks. FlavaWorks allows its
members to download videos from FlavaWorks.com on the condition
they agree not to share them. Not surprisingly, many
FlavaWorks members haven't read the fine print, and post
the videos on publicly-accessible servers. MyVidster.com
users find those videos and link to them, allowing other
myVidster.com users free access to the videos. FlavaWorks
claimed that about 300 of its videos had been pirated in this
manner, resulting in the loss of nearly $100,000 in revenue and
declining sales. FlavaWorks brought suit against
myVidster.com for contributory copyright infringement in the
Federal District Court for the Northern District of Illinois.
The District Court issued an injunction in FlavaWorks'
But last month, that injunction was overturned by the 7th
In his written opinion, Judge Posner acknowledged that
FlavaWorks was being wronged, and that myVidster may even have
encouraged subscribers to circumvent FlavaWorks' pay wall.
However, in order to have copyright infringement, someone has
to make a copy. And nobody on the myVidster.com end of things
was actually making a copy. Sure, an original authorized copy
was downloaded by a FlavaWorks' member, who may have violated
the law by posting it somewhere publicly. But according to
Judge Posner, once that video was uploaded somewhere, neither the
myVidster.com user (who simply posted a link to the video) nor
myVidster.com itself (which only played the video from its stored
location) was actually making a copy. Nor could the display
of the video be considered a "public performance,"
although the Court felt this was a close call. Rather, what
was going on here was more analogous to stealing a copyrighted book
from a bookstore or sneaking into the movies. "That is a
bad thing to do (in either case)" wrote Judge Posner,
"but it is not copyright infringement."
By the way, if you are wondering why indeed you should spiral
cut your wiener, the video is available here.
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