Here, the evidence established that the defendants’ servers in China stored and served data,
including pictures of the plaintiff’s copyrighted merchandise, for sale to U.S. customers, which
was sufficient for direct infringement of the display right. The court also rejected the
defendants’ argument that the images could not be “copies” of the physical copyrighted
merchandise. Accordingly, the court denied the defendants’ motion for JMOL as to direct
infringement.^1593
(b) Flava Works v. GunterIn Flava Works, Inc. v. Gunter,^1594 the defendants were the operators of a web site called
myVidster.com, a social networking web site through which site members could store and
bookmark video files and post links to third party web sites on which the files were available.
Such files were then available for other myVidster users to view or download. The plaintiff,
owner of copyrights in adult entertainment products, alleged that users of myVidster had
uploaded the plaintiff’s copyrighted videos and images, or links to those videos, to the site. The
plaintiff sent myVidster seven DMCA notices of copyright infringing specifying the infringing
material, identifying users that the plaintiff suspected to be repeat infringers, and demanding that
the material be taken down. The plaintiff’s complaint did not allege that myVidster had failed to
remove the material identified in the notices from the site, but did allege that after the notices
were sent, the web site continued to be updated with more and more infringing material from its
users. The complaint also alleged that the site did not have in place any filters or identifiers to
prevent the plaintiff’s copyrighted material from being re-posted by repeat infringers and the site
took no action to stop, reprimand or ban repeat infringers. The plaintiff sought to hold
myVidster directly, contributorily, and vicariously liable for infringement of its copyrights. The
defendants filed a motion to dismiss on the common law claims, although the motion was
apparently not based on any of the DMCA safe harbors.^1595
The court granted the motion with respect to the claim of direct infringement, citing the
CoStar case for the proposition that to establish liability for direct copyright infringement, a
plaintiff must demonstrate that the defendant engaged in volitional conduct that causes a copy to
be made. Because the only volitional copying alleged in the complaint was alleged to have been
done by myVidster users, not its operators, the complaint failed to state a claim for direct
copyright infringement.^1596 The court’s rulings with respect to contributory, vicarious, and
inducement liability are set forth in Sections III.C.2(m), III.C.3(o), and III.C.4(e) below,
respectively.
(^1593) Akanoc, 2010 U.S. Dist. LEXIS 85266 at 11-15.
(^1594) 2011 U.S. Dist. LEXIS 50067 (N.D. Ill. May 20, 2011), rev’d on other grounds, 689 F.3d 754 (7th Cir. 2012).
(^1595) Id. at 1-4.
(^1596) Id. at *6-8.