(m) Flava Works v. GunterThe facts of this case are set forth in Section III.C.1(b). The court denied the defendants’
motion to dismiss the plaintiff’s claim for contributory infringement. With respect to the
knowledge requirement, the court assumed for its discussion that to allege knowledge for
common law liability, a plaintiff must allege something more than the defendants’ receipt of its
seven DMCA notices. Here the DMCA notices identified both specific infringing files and
specific repeat infringers. In addition, although the plaintiff did not allege that the defendants
failed to remove the infringing material from myVidster, it did allege that the defendants failed
to take any action to stop, reprimand, or ban the repeat infringers listed in the DMCA notices and
that the defendants failed to implement filters or identifiers to prevent repeated infringing
conduct.^2076 “Because plaintiff alleges not just the receipt of DMCA notices but also that after
having received the notices defendants failed to act to prevent future similar infringing conduct,
it has sufficiently alleged the knowledge element of contributory copyright infringement.”^2077
The court found a sufficient material contribution alleged in the allegations that defendants
provided a web site that stored infringing material, allowed backup copies to be made,
encouraged sharing, had no filters or identifiers in place to prevent repeat infringers, and took no
action to stop or ban the repeat infringers who allegedly posted the plaintiff’s copyrighted
works.^2078
In a subsequent opinion, the court ruled that the plaintiff was entitled to a preliminary
injunction, finding the defendant liable for contributory infringement for essentially the same
reasons articulated in the first opinion.^2079 In its opinion, the court commented on the provisions
of a proposed injunction submitted by the plaintiff. The plaintiff had proposed that myVidster be
required to implement digital fingerprinting on its site, but the court noted that the plaintiff had
presented no evidence of what constituted “digital fingerprinting” or whether its implementation
would be reasonably feasible or affordable. Accordingly, the court said it would decline to order
that the defendants implement that technology. However, the court agreed that it would include
in the injunction an obligation to filter based on a list of keywords and tags to prevent the upload
or download of, posting of links to videos, and the posting of embedded videos containing the
plaintiff’s copyrighted content, including intentional or inadvertent misspellings of the keywords
and tags. The injunction would also require the defendants to disable the accounts of users who
on two or more occasions had posted content that infringed one or more of the plaintiff’s
copyrights.^2080
(^2076) Flava Works, Inc. v. Gunter, 2011 U.S. Dist. LEXIS 50067 at 11-12 (N.D. Ill. May 10, 2011), rev’d, 689 F.3d
754 (7th Cir. 2012).
(^2077) Id. at 12.
(^2078) Id. at 12-13.
(^2079) Flava Works, Inc. v. Gunter, 2011 U.S. Dist. LEXIS 82955 at 20-29 (N.D. Ill. July 27, 2011), rev’d, 689 F.3d
754 (7th Cir. 2012). The court also ruled that the defendants were not entitled to a DMCA safe harbor. See
Section III.C.6(b)(iii).r below.
(^2080) Id. at *34-35.