MPAA Joins Google, Facebook, EFF In Repeat Infringer Copyright Battle

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As the battle over the DMCA's requirements and boundaries heats up, Google, Facebook, the EFF, Public Knowledge and now the MPAA have become involved in a copyright case currently being heard by the 7th Circuit Court of Appeals. Is it enough for a site to perform takedowns when copyright holders demand them, or must it also take additional steps to remove repeat infringers?

Flava Works, Inc v. Gunter is an ongoing case involving an adult studio plaintiff and a user-submitted video links/video embedding site.

It has become so important that some of the world’s leading Internet companies such as Google and Facebook, rights groups such as the EFF and Public Knowledge, and the biggest entertainment companies through the MPAA, have all become involved in the case.

First a little background. Marques Gunter owns a site called myVidster, a site designed for users to upload links and embed videos hosted on 3rd party sites. In 2010, adult studio Flava Works filed a copyright complaint against myVidster and 26 Doe users of its service.

Flava Works alleged that Gunter had failed to correctly police his site for infringement. Although Flava did not deny that Gunter had responded to specific takedown requests, the company said that despite being made aware of them, Gunter had done nothing to stop a sample of 26 repeat infringers who continually reposted links to infringing material on the myVidster site.

In July 2011, a contributory infringement claim was upheld and a preliminary injunction awarded against myVidster. The company was denied a DMCA safe harbor defense after it was said to have not done enough to deal with repeat infringement.

“[Gunter] removes videos from myVidster that are listed in DMCA notices, but goes no further. Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection,” Judge John F. Grady wrote.

“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,” Grady added.

Noting the importance of the case, late November 2011 the EFF and Public Knowledge filed an amicus brief. The pair said that Grady had gone too far with his interpretation of the DMCA and noted that the law “….does not say when and how service providers must terminate the accounts of ‘repeat infringers,’ nor does it define ‘repeat infringer’.'”

Also in November, Internet giants Google and Facebook signaled their interest in the case and their desire to have the original decision overruled. Their submission is complex, but boils down to a common theme.

“Lack of certainty not only harms established businesses like Google and Facebook, but may prevent investment in and development of the next Google or the next Facebook. A [recent study] found that imposing greater liability on Internet intermediaries for the actions of their users would have a devastating effect on investment in early-stage Internet companies,” the pair wrote in a joint amicus brief.

With such important issues at stake, and with their interests leaning more towards holding service providers liable wherever they can, on April 4th the MPAA added their amicus brief to the mix. The MPAA wants Judge Grady’s 2011 ruling upheld.

“Contrary to the assertions of myVidster and amici Google and Facebook, search engines and social networking sites are not the only businesses that desire certainty in a challenging online marketplace,” MPAA wrote. “MPAA member companies and other producers of creative works also need a predictable legal landscape in which to operate.”

“By advertising infringing material, refusing to terminate any of its users’ accounts, and failing to identify and stop infringers who repeatedly embedded links to unauthorized video streams and displays, myVidster did not qualify for safe-harbor protection,” the MPAA continued.

Again, the brief submitted by the MPAA is highly complex, but it too can be boiled down to a simple interest.

“Given the massive and often anonymous infringement on the internet, the ability of copyright holders to hold gateways like myVidster liable for secondary infringement is crucial in preventing piracy,” the MPAA states.

In keeping with that theme and according to a statement from Flava Works CEO Phillip Bleicher seen by AVN, Flava Works are also suing the web hosts of myVidster.

US-based and Netherlands-based are said to be on the hook “…for failing to remove from its servers despite dozens of DMCA notices alerting and that Gunter was a repeat infringer. Under DMCA, safe harbor no longer applies to sites that fail to remove repeat infringers.”

Flava Works, Inc v. Gunter, currently up before the 7th Circuit Court of Appeals, is one of the most important copyright-related cases around and definitely one to keep an eye on.


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