In his ruling, Judge John Grady zeroes in on MyVidster’s failure to curb repeat infringers
Wednesday, Judge John F. Grady granted Flava a preliminary injunction, and in his ruling came down hard on Gunter for failing to curb the actions of repeat infringers, including a provision that would require the defendant to “disable the accounts of users who on two or more occasions have posted content that infringes on one or more of plaintiff’s copyrights.”
But Grady was not finished, not by a long shot. In a further rebuke to the defendants on the subject of repeat infringers, the judge almost sounds angry, writing, “It is difficult for us to understand how defendants can argue with a straight face that they have adopted and reasonably implemented a ‘repeat infringer’ policy,” he wrote. “Gunter determines the policies for, and controls, myVidster. His understanding of the term ‘infringer’ does not encompass the law of copyright; he operates his site under the mistaken view that an ‘infringer’ is limited to a person who posts content that is hosted on a password protected or private website. The statute does not define the term ‘repeat infringer,’ but it is an obvious conclusion that ‘infringer’ refers at the very least to someone who infringes copyright.”
It will be interesting to see if Grady’s determination to secure a clear definition of what it means to be a “repeat infringer” will be emulated by other judges in other cases, but the question is certainly more than relevant to all such copyright infringement cases in which plaintiffs argue that the real long-term damage being done to their businesses is being caused by a relatively few people who are allowed (and often encouraged) to upload massive amounts of content without the permission of the copyright holders.
Again, in his ruling, Grady takes Gunter to task for failing to act beyond the minimum requirements of the Digital Millenium Copyright Act (DMCA).
“Gunter does not warn his users about copyright infringement (coyly instructing them not to violate ‘US law’ does not cut it),” he wrote. “He 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. 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.”
Indeed, it is as if a judge has for the first time in an adult industry related case actually read the DMCA, and from that reading realized—as if through an epiphany—that it demands more than is usually required of those who seek its safe harbor protections.
After quoting from the 2003 Aimster case—(“The [DMCA] does not abolish contributory infringement. The common element of its safe harbors is that the service provider must do what it can reasonably be asked to do to prevent the use of its service by ‘repeat infringers.’”)—Grady wrote, “Gunter’s attitude is similar to that of Aimster, which the Seventh Circuit deemed an ‘ostrich-like refusal to discover the extent to which its system was being used to infringe copyright,’ noting that it was ‘another piece of evidence’ of contributory infringement.”
MyVidster, he contended, could easily have determined whether site users had posted infringing videos on two or more occasions, but instead refused to do so. Gunter, he further stated, “refuses to do so, and he refuses to acknowledge his duty to terminate the accounts of such users.”
Refusing to deal with repeat infringers is not the only reason Grady ruled in favor of Flava Works, to be sure, but it is the meat of the ruling, as indicated by the fact that the injunctive order, which needs to be submitted to the court by the plaintiff by Aug. 15, will include several requirements intended to prevent repeat infractions, including an order for MyVidster to “Adopt and reasonably implement a repeat-infringer policy with respect to the infringement of copyright,” and the requirement that the site “disable the accounts of users who on two or more occasions have posted content that infringes on one or more of plaintiff’s copyrights.”
The judge declined to accept the plaintiff’s request that MyVidster be shut down, however. Instead, Grady seemed determined to put into place provisions and requirements that, in addition to any fines levied against MyVidster, prevent the sort of repeat abuse that has thus far made them ineligible “for the user-generated-content safe harbor.”
Flava Works’ CEO Phillip Bleicher today responded to the verdict, saying, “This is a huge win for us content producers. Gunter’s continued arrogance is astonishing and we are very pleased that the judge saw through his smokescreen and ruled in our favor.”
The Flava Works v Gunter ruling can be accessed here.