A new U.S. court decision puts big DOJ criminal copyright prosecutions in jeopardy

Last week, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit issued an opinion in Flava Works v. Gunter, a copyright case involving myVidster, a “social video bookmarking” platform that allows users to embed videos — including videos that infringe copyrights — on their personal web pages.  Plaintiff, a producer of porn videos aimed at gay, black men, sued myVidster for contributing to copyright infringement. In a lengthy but lively opinion, Judge Posner rejected those claims, holding that allowing users to link to and embed infringing videos could not lead to liability for myVidster.

This is a big decision. Not least because it throws into jeopardy the U.S. government’s criminal copyright prosecutions in the Megaupload, and O’Dwyer cases, which we’ve written about previously here. The O’Dwyer case in particular is based on the premise that providing links to infringing material is criminal.  But in the Flava Works case, Judge Posner held that that conduct cannot even give rise to civil liability. And, as Jennifer Granick (pictured at left), the Director of Civil Liberties at Stanford’s Center for Internet and Society, explains in this post, the criminal charges against U.K. student Richard O’Dwyer shouldn’t survive (nor, for different reasons, those against Megaupload and its CEO, Kim Dotcom). Granick should know what she’s talking about. She’s one of very few people with deep expertise in both copyright (in her role at CIS she has, among other things, helped litigate a bunch of important copyright cases) and criminal defense law (she spent more than a decade doing that).
All of this illustrates a point that we emphasize in The Knockoff Economy: there are very tight limits to what copyright law and copyright lawsuits can do to curb illegal copies. Industries that face knockoffs are going to have to find other ways to cope with them — and perhaps even profit from them.  And they can.

Another mass porn infringement case bites the dust

Some porn producers have been filing mass lawsuits against thousands of defendants, and using the shame of being named as a infringing porndog as leverage to get quick settlements. Recently, a number of federal courts have dismissed these “porn trolling” suits. And now we have the Illinois Supreme Court dismissing another one. The plaintiffs here tried something new — they attempted to get jurisdiction in state court by re-packaging copyright infringement claims as a sort of mass hacking claim based on widescale unauthorized access to their clients’ porn sites. It didn’t work, but you can expect that the plaintiffs will keep at it, at least for a while.