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: