In a 7th Circuit Court of Appeals decision given by Justice Richard Posner, myVidster.com has been cleared of copyright infringement. The site, which allows users to engage in “social bookmarking,” which involves internet users sharing hyperlinks to online materials in which they may share a mutual interest in, is primarily a site to exchange links to pornographic material. As Judge Posner noted, there was other material available on the site and a family filter does exclude porn, but the site itself does not infringe copyright. In the District Court the plaintiff, porn company FlavaWorks, was granted an injunction after claiming that 300 of its videos had been linked too. On appeal Judge Posner acknowledged that FlavaWorks was being wronged, and that myVidster may even have encouraged subscribers to circumvent FlavaWorks’ pay wall. However, the Judge was of the opinion that in order to have copyright infringement, someone has to make a copy. And nobody at myVidster.com was actually making a copy – it was such facilitating links from those who had illegally uploaded a copy of Flavaworks videos – to those who then illegally downloaded a copy. Nor could the display of the video be considered a “public performance,” although the Court felt this was a close call. Rather, what was going on was more analogous to stealing a copyrighted book from a bookstore or sneaking into the movies. “That is a bad thing to do (in either case)” wrote Judge Posner, “but it is not copyright infringement.”
However in the Netherlands a court has found that linking to illegal material is an infringement. he Dutch blog GeenStijl provided a link to naked photos of model/reality TV star Britt Dekker. The photos had been leaked from Playboy magazine shortly before publication of its November 2011 issue, and had been illegally uploaded to a website called Filefactory. In providing the link, GeenStijl was found to infringe Playboy publisher Sanoma’s copyright in the image. It has been ordered to pay €28,400 and will face further fines if it does not take the link down. in a summary decision the UK courts have held that merely linking to a website that has published unlawful content could incur liability (McGrath v Dawkins) although of course in Newzbin 2 Mr Justice Arnold ordered BT to block links to Newzbin saying “In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newzbin 2 infringe copyright on a large scale, and in particular infringe the copyrights of the studios in large numbers of their films and television programmes.” The block was ordered under section 97A of the CDPA 1988. The Canadian Federal Court held that merely posting a link to a photograph online was not copyright infringement. The court found that the photographer had authorised the communication of the work by posting the photo online, and noted that the photographer could remove the photo if he wanted to prevent people from linking to it.