ultimately rejected such an argument by virtue of distinctions from previous Seventh Circuit
authority in the Fonovisa and Aimster cases.
Specifically, Judge Posner distinguished the present case from the “swap meet” operated
by the defendant in the Fonovisa case,^2087 in which pirated copies of musical recordings were
being bought and sold. The court noted that Flava’s pirated videos were not sold, and there
wasn’t even admissible evidence that they were actually being accessed via myVidster, rather
than via other websites. myVidster was not encouraging the uploading of Flava videos because
it had some financial incentive to encourage performance of those works, as the swap meet
did.^2088 Judge Posner also distinguished the Aimster case,^2089 in which Aimster created the
online equivalent of a swap meet by supplying the software that enabled the file-sharing of
copyrighted recordings over the Internet. Unlike Aimster, myVidster was not encouraging
swapping, which in turn would encourage infringement.^2090
Accordingly, the court concluded that on the record compiled to that point there was no
basis for the grant of a preliminary injunction on the grounds of secondary infringement. Judge
Posner noted, however, that Flava should be entitled to an injunction against myVidster’s backup
service, in which it made copies of videos that some of its subscribers had posted, including
videos copyrighted by Flava (although myVidster had stopped offering that service), because the
service constituted direct infringement on myVidster’s part. But the preliminary injunction
issued by the district court did not enjoin the backup service because Flava didn’t make a claim
for direct infringement a basis for its motion for preliminary relief. Judge Posner noted that such
an injunction might be something for consideration on remand.^2091
(n) Perfect 10 v. GiganewsIn Perfect 10, Inc. v. Giganews, Inc.^2092 the defendants (Giganews and Livewire) were
providers of access to USENET for a monthly fee starting at $4.99 per month. The content
posted by the defendants’ subscribers and other USENET users, including infringing content,
was stored on the defendants’ servers. Before filing its complaint, the plaintiff sent a letter to
one of the defendants, Giganews, notifying that it was infringing the plaintiff’s copyrights, and
included a DVD containing hundreds of Perfect 10 images, characterizing them as a sampling of
its copyrighted materials that Giganews’ site had offered for sale without authorization.
Giganews responded by stating that each article posted on USENET has a unique message
identification numbers, and if the plaintiff provided the identification numbers of the articles
containing the infringing content, Giganews would be able to find the specific infringing material
and remove it. The plaintiff did not do so. The plaintiff then filed a complaint for direct,
(^2087) Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259 (9th Cir. 1996).
(^2088) Flava Works, 689 F.3d at 761-62.
(^2089) In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), cert. denied, 124 S. Ct. 1069 (2004).
(^2090) Flava Works, 689 F.3d at 762.
(^2091) Id. at 762-63.
(^2092) 2013 U.S. Dist. LEXIS 71349 (C.D. Cal. Mar. 8, 2013).