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MPAA Lines Up With Porn Studio in Steamy Copyright Dispute

Embedded links and repeat infringers are subject of a battle that's garnered the interest of movie studios, Google and Facebook.

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The MPAA has gotten involved in a dispute over a website that allowed users to upload embedded links to porn videos.

The case is Flava Works, Inc. v. Gunter, pending before the 7th Circuit Court of Appeals. It has suddenly become one of the hottest cases on the docket, thanks to a ruling last year by a federal judge, an appeal, and submitted amicus briefs by the MPAA, Google, Facebook and others.

In 2010, MyVidster, a social video bookmarking site, was sued by Flava Works, which considers itself to be the best source of gay erotica featuring black and latino men.

The plaintiff alleged that its copyrighted works had been infringed, and in a ruling last July that granted a preliminary injunction, Illinois federal judge John Grady ruled that MyVidster and its operator, Marques Rondale Gunter, couldn't avail themselves of safe harbors under the Digital Millennium Copyright Act because the site hadn't acted beyond minimum requirements.

MyVidster had responded to written takedown notices, "but goes no further," wrote the judge. "Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection. 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.”

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The decision was appealed up to the 7th Circuit, where it quickly got support by public interest groups and big tech companies.

"Courts have emphasized that [DMCA'] §512(i) does not create any duty on the part of service providers to police their sites or otherwise make determinations on claims of copyright infringement,” wrote EFF and Public Knowledge in an amicus brief. The groups went onto to say that copyright law "does not say when and how service providers must terminate the accounts of ‘repeat infringers,' nor does it define ‘repeat infringer.'"

Google and Facebook were just as concerned by the judge's decision, telling the appellate circuit in a brief filed in November that the "continued development and progress of web technology" was at stake.

Specifically, the two companies asserted that clear rules are needed to make a distinction between direct and secondary liability. The companies explained the technology behind embeds -- also known as "inline links" -- and wanted the 7th Circuit to find that under the Copyright Act, it was the server transmitting the video rather than the server merely linking to that video that was involved in "performance."

According to the brief:

"In order to be liable as a direct infringer of the exclusive right of public performance, one must transmit or otherwise communicate the copyrighted work in question. With respect to 'embedded' videos, myVidster does not transmit or otherwise communicate the copyrighted video; a third-party site does."

Just as importantly, the case presented an opportunity to address the so-called "server test" offered by the 9th Circuit in the Perfect 10 cases. In those disputes, it was held that because Google and Amazon held no copies of images from the adult publisher Perfect 10 on its own servers, they couldn't be held liability for merely linking to images. That's why when a consumer goes to Google Images, he or she can see thumbnails of copyrighted pictures.

In sum, Google and Facebook said that the judge's injunction against MyVidster meant the social bookmarking got the same treatment as direct infringers, a decision that "has imperiled the investment decisions and licensing arrangements" by its companies.

Last week, the MPAA responded and called myVidster "an unlicensed on-demand, internet-video service that generated advertising and other revenues by attracting an audience for infringing content."

The studio trade group took the opportunity to attack the "server test," which it says was contrary to the "language and legislative history of the Copyright Act, which affords copyright owners a broad and technological neutral display right."

The MPAA then adds:

"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."

If true, the copyright liability for making embed links or hosting them could be significant. In this particular case, the MPAA says that the district judge correctly determined that myVidster knew of direct infringement, and rather than discouraging the behavior, the company "advertised the availability of infringing material, including mainstream motion pictures; and willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified."

In a sense, the MPAA's brief, submitted around the same time the 2nd Circuit handed down a decision in the Viacom v. YouTube case with still open questions about ISPs' "right and ability to control infringing works," suggests where the battlefield is headed. And if the next big appellate decision involves gay erotica, none of the interested parties seem to mind.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner