On appeal, the Seventh Circuit (per Judge Posner) vacated the preliminary injunction in a
rather confusing opinion. The court first adopted the Second Circuit’s succinct definition of
contributory infringement as “personal conduct that encourages or assists the infringement.”^2081
The court then considered two potential infringing acts of myVidster users to which myVidster
might be a contributory infringer – the uploading of infringing copies of Flava’s videos and the
public performance of those videos when viewed by myVidster users. The court held that
myVidster could not be a contributory infringer to any unauthorized acts of uploading of
infringing copies of Flava’s videos because there was no evidence that myVidster was
encouraging such acts, and merely providing a connection to websites that contained illegal
copies of Flava’s copyrighted videos was insufficient encouragement for contributory
liability.^2082 “myVidster displays names and addresses (that’s what the thumbnails are, in effect)
of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who
uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is
no more a copyright infringer than if he had snuck into a movie theater and watched a
copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe
copyright is not a contributory infringer.”^2083
The court then turned to whether myVidster could be a contributory infringer to
unauthorized public performances of Flava’s videos. With no direct analysis of the statutory
definition of “public performance,” Judge Posner posited two different interpretations of what
constitutes a public performance under the transmit clause of the definition. The first
interpretation, which he labeled “performance by uploading,” is that “uploading plus
bookmarking a video is a public performance because it enables a visitor to the website to
receive (watch) the performance at will, and the fact that he will be watching it at a different time
or in a different place from the other viewers does not affect its ‘publicness,’ as the statute makes
clear.”^2084 myVidster could have no contributory liability under this interpretation because there
was no evidence that myVidster was contributing to the decision of users to upload a Flava video
to the Internet where it then became available to be bookmarked on myVidster’s web site.^2085
The second interpretation, which Judge Posner labeled “performance by receiving,” is
that “the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s
computer – in other words when it is ‘communicated to the public in a form in which the public
can visually or aurally comprehend the work.’”^2086 The court noted that under this interpretation,
there was an argument that even though the video uploader was responsible for the transmitting,
not myVidster, myVidster was assisting the transmission by providing the link between the
uploader and the viewer, and was thus facilitating public performance. However, Judge Posner
(^2081) Flava Works, Inc. v. Gunter, 689 F.3d 754, 757 (7th Cir. 2012) (quoting Matthew Bender & Co. v. West
Publishing Co., 158 F.3d 693, 706 (2d Cir. 1998)).
(^2082) Flava Works, 689 F.3d at 757-58.
(^2083) Id. at 758.
(^2084) Id. at 760.
(^2085) Id. at 761.
(^2086) Id. at 760 (quoting William F. Patry, Patry on Copyright § 14:21, p. 14-41 (2012)).