DMCA Does Not Like This Flava: Injunction Granted Due To Insufficient Repeat Infringer Policy

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A dis­trict court in the North­ern Dis­trict of Illi­nois granted a pre­lim­i­nary injunc­tion on July 27, against an online video ser­vice, find­ing both (1) knowl­edge of infringe­ment suf­fi­cient to sup­port con­trib­u­tory lia­bil­ity and (2) unavail­abil­ity of the DMCA safe har­bor defense based upon the defendant’s fail­ure to enact and enforce a rea­son­able repeat infringer policy.

The defen­dant ran a web­site called myVid­ster (prob­a­bly not the best name if one is seek­ing to avoid copy­right infringe­ment scrutiny), which it char­ac­ter­ized as a “social video book­mark­ing” site.  myVid­ster allowed users to embed videos on the web­site by post­ing links to video files on other web­sites, and also offered the  post­ing user (for a fee) the abil­ity to cre­ate and save “backup” copies of the video on myVid­ster servers.  If no such “backup” copy was made, the posted videos played from the servers des­ig­nated in the user’s posted link, but were embed­ded in the myVid­ster web­site.  In other words, a user would see the video play­ing from within the myVid­ster page, with­out being redi­rected to the web­site from which the video file is being served.

The plain­tiff, Flava Works, Inc., describes itself as a “gay eth­nic adult com­pany” which, among other things, pro­duces adult videos with titles like “Flava­men” and “CocoDorm.”  Flava Works alleged that var­i­ous of its adult videos had been posted on the myVid­ster web­site and that the defen­dant had nei­ther responded promptly to its DMCA take­down notices nor ter­mi­nated users who were the sub­ject of mul­ti­ple take­down notices.  The defen­dant took the posi­tion that, even if it removed con­tent in response to a DMCA notice, it did not con­sider a user an infringer unless the user posted video from a source that was not pub­licly acces­si­ble (e.g., behind a pay­wall), and there­fore would not ter­mi­nate an account for repeat infringe­ment unless a user posted mate­r­ial from non-public web­site on mul­ti­ple occa­sions.  The dis­trict court rightly found this “repeat infringer” pol­icy to be insuf­fi­cient to sat­isfy the require­ments of the DMCA safe har­bor, not­ing that it was “in fact no pol­icy at all, at least with respect to copy­right infringe­ment.”  The court also found the defen­dants’ pol­icy to be “the epit­ome of ‘will­ful blindness.’”

Here is the court’s opinion:

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