Flava Works, Inc v. Marques Rondale Gunter, et al

Filing 17

Amicus brief filed by Amici Curiae Facebook Incorporated and Google Incorporated, per order. Paper copies due on 12/15/2011. Electronically Transmitted. [6357920] [11-3190] (RT)

No. 11-3190
IN THE

United States Court of Appeals
FOR THE SEVENTH CIRCUIT

FLAVA WORKS, INC.,

Plaintiff-Appellee,

v.
MARQUES RONDALE GUNTER, DOING BUSINESS AS MYVIDSTER.COM
AND

SALSAINDY, LLC,
___________

Defendants-Appellants.

On Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division
The Honorable Judge John F. Grady, presiding
BRIEF OF AMICI CURIAE
GOOGLE INC. AND FACEBOOK, INC.
IN SUPPORT OF NEITHER PARTY

Of Counsel:
Fred von Lohmann
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650-253-0000
Richard Nessary
FACEBOOK, INC.
1601 S. California Avenue
Palo Alto, CA 94304
650-543-4800

Joseph C. Gratz
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
415-362-6666
Attorneys for Amici Curiae
Google Inc. and Facebook, Inc.

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1,
counsel for amici curiae certifies the following information:
Google Inc. has no parent corporation, and no publicly held corporation owns
ten percent or more of its stock.
Facebook, Inc. has no parent corporation, and no publicly held corporation
owns ten percent or more of its stock.
The following is a list of all law firms whose partners or associates have
appeared for amici curiae in the case (including proceedings in the district court or
before an administrative agency) or are expected to appear in this court: Durie
Tangri LLP.

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TABLE OF CONTENTS
PAGE NO.
IDENTITY AND INTEREST OF AMICI CURIAE .................................................. 1
SUMMARY OF ARGUMENT ................................................................................... 3
THE STATUTORY FRAMEWORK .......................................................................... 5
TECHNICAL BACKGROUND ................................................................................. 6
I.

The Web ............................................................................................. 7

II.

The HTML “Recipe” ........................................................................... 7

III.

Links: Identifying the “Ingredients” in the Recipe .......................... 8

IV.

Some Links Embed Videos .............................................................. 10

V.

Other Links Are Hypertext References .......................................... 13

VI.

Salient Conclusions to be Drawn .................................................... 14

ARGUMENT ............................................................................................................ 15
I.

Linking is not direct copyright infringement. ................................ 15

II.

Linking can potentially be contributory or vicarious
copyright infringement under some circumstances. ...................... 16

III.

MyVidster is not liable as a tertiary copyright infringer,
because there is no such thing as tertiary copyright
infringement. ................................................................................... 18

CONCLUSION......................................................................................................... 19

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TABLE OF AUTHORITIES
PAGE NO.
Cases
Assessment Techs. of WI, LLC v. WIREdata, Inc.,
350 F.3d 640 (7th Cir. 2003) .................................................................................... 18
Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc.,
866 F.2d 278 (9th Cir. 1989) ...................................................................................... 6
Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc.,
955 F.2d 1143 (7th Cir. 1992) .................................................................................. 16
In re DoubleClick Inc. Privacy Litig.,
154 F. Supp. 2d 497 (S.D.N.Y. 2001) ...................................................................... 7
Katz v. Napster, Inc.,
No. 11 Civ. 4725-MHP (N.D. Cal. July 9, 2001) ..................................................... 18
Monotype Imaging, Inc. v. Bitstream, Inc.,
376 F. Supp. 2d 877 (N.D. Ill. 2005) ........................................................................ 16
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) .......................................................................... passim
Perfect 10, Inc. v. VISA Int’l Serv. Ass’n,
494 F.3d 788 (9th Cir. 2007) .................................................................................... 18
UMG Recordings, Inc. v. Veoh Networks Inc.,
No. 07-5744 AHM, 2009 WL 334022 (C.D. Cal. Feb. 2, 2009)................................ 18
Statutes
17 U.S.C. § 101 ....................................................................................................... 4, 5, 6
17 U.S.C. § 106(4) .......................................................................................................... 5
17 U.S.C. § 512 ............................................................................................................. 19
Other Authorities
BOOZ & CO., THE IMPACT OF U.S. INTERNET COPYRIGHT REGULATIONS ON EARLYSTAGE INVESTMENT: A QUANTITATIVE STUDY (2011).................................................. 2

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IDENTITY AND INTEREST OF AMICI CURIAE 1
Amicus Google Inc., founded in 1998, is a diversified technology company
headquartered in California’s Silicon Valley. Google’s mission is to organize the
world’s information and make it universally accessible and useful. Google’s history
has coincided with, and contributed to, a vast expansion of the internet and
computer technologies that have profoundly influenced human society.
Amicus Facebook is a social utility that helps people communicate more
efficiently with their friends, family and coworkers. The company develops
technologies that facilitate the sharing of information through the social graph, the
digital mapping of people’s real-world social connections. Facebook currently has
more than 800 million active users.
Proper legal treatment of web technology is important to amici. The
continued development and progress of web technology depends on legal certainty,
particularly with respect to liability for the misuse by third party users of Internet
services for the purpose of infringing copyright. Lack of certainty not only harms
established businesses like Google and Facebook, but may prevent investment in
and development of the next Google or the next Facebook. A recent Booz & Co.
study found that imposing greater liability on Internet intermediaries for the

No person other than amici and their counsel, including parties to this action and
their counsel, authored this brief in whole or in part or contributed money that was
intended to fund preparing or submitting this brief.
1

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actions of their users would have a devastating effect on investment in early-stage
Internet companies. 2
Amici host an enormous quantity of content on behalf of their users, and that
content is frequently linked to, embedded, and displayed on other web sites. For
example, every YouTube video displayed on a website other than YouTube is the
result of video transmitted by YouTube’s servers (YouTube is owned by amicus
Google). See, e.g., http://www.whitehouse.gov/state-of-the-union-2011 (embedding a
YouTube video of the State of the Union Address on the whitehouse.gov web site).
Every “Like” button and every Facebook “Recommend” button shows content
transmitted by Facebook’s servers. See, e.g., http://www.chicagotribune.com/
(featuring an embedded Facebook “Recommend” button next to each article). Amici
are deeply familiar with the ways that websites show material from other websites
along with their own material, because, very often, it is material hosted by amici
that is being linked to in that way by other sites.
The sites operated by amici also link to content hosted on millions of other
people’s sites. Some of these are simple blue hypertext links that send those who
click on them to another web page. But sometimes the link appears as something
other than clickable blue text. For example, Google Images presents images that
operate as links to particular images that users are searching for. See

BOOZ & CO., THE IMPACT OF U.S. INTERNET COPYRIGHT REGULATIONS ON EARLYSTAGE INVESTMENT: A QUANTITATIVE STUDY 5 (2011), available at
http://www.booz.com/media/uploads/BoozCo-Impact-US-Internet-CopyrightRegulations-Early-Stage-Investment.pdf.
2

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http://images.google.com. And every game on Facebook is hosted by the game
developer, not by Facebook. Many of those games, including popular ones such as
CityVille, Gardens of Time, and The Sims Social, are integrated into the user’s
experience via inline framing—one of the types of linking discussed in this brief. 3
Amici are concerned that the court below rendered its opinion without the
benefit of “detailed evidence about exactly how myVidster works.” SA50 n.4. In our
view, a detailed understanding of how myVidster works is critical to drawing the
line between direct infringement and indirect or secondary infringement—one of the
key tasks facing this Court. Amici have special expertise which may assist the
Court in understanding the technical context of the acts at issue and how those
technical facts fit into the framework established by the Copyright Act.
SUMMARY OF ARGUMENT
Amici submit this brief primarily out of concern over the following passage in
the opinion below:
In our view, a website’s servers need not actually store a copy of a work in
order to “display” it. The fact that the majority of the videos displayed on
myVidster reside on a third-party server does not mean that myVidster users
are not causing a “display” to be made by bookmarking those videos. The
display of a video on myVidster can be initiated by going to a myVidster URL
and clicking “play”; that is the point of bookmarking videos on myVidster—a
See http://developers.facebook.com/docs/guides/canvas/ (providing a technical
explanation of the integration of Facebook games into the Facebook site using inline
framing).
3

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user can navigate to a collection of myVidster videos and does not have to go
to each separate source site to view them.
SA50-51. In this way the opinion below contravened the “server test” established by
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1161 (9th Cir. 2007). See SA50
(“To the extent that Perfect 10 can be read to stand for the proposition that inline
linking can never cause a display of images or videos that would give rise to a claim
of direct copyright infringement, we respectfully disagree.”). This Court should
make clear that, as the Copyright Act states, to perform a video publicly on the
Internet means “to transmit or otherwise communicate a performance . . . of the
work . . . to the public,” 17 U.S.C. § 101, and the server transmitting the video—not
the server merely linking to that video—is thus the one involved in its
“performance.”
The court below blurred the lines between direct and secondary liability on
the web. This Court should make clear that the server transmitting a video, not a
server which merely provides a link to that video, is the server involved in the
performance of that video. Continued innovation on the Internet depends on clear
rules like those established in Perfect 10, and this Court should join the Ninth
Circuit in drawing a clear distinction between direct and secondary liability.
To explain why this is so, amici begin with the statutory definition of public
performance, and the way that courts have interpreted that definition. Next, amici,
who have special expertise with respect to the technology at issue, provide a
detailed explanation in response to the statement of the court below that its

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analysis was hampered by the lack of “detailed evidence about exactly how
myVidster works.” SA50 n.4. Finally, amici discuss the ramifications of these
technological facts for the legal analysis of who is a direct infringer versus a
contributory or vicarious infringer.
THE STATUTORY FRAMEWORK
Flava Works alleges that its exclusive right of public performance has been
infringed. 4 Not every “performance,” or playback, of a video is a copyright
infringement; the question is whether the work is performed “publicly.” 17 U.S.C. §
106(4). To perform a work “publicly” means to perform it in a public place, such as
an auditorium or a nightclub (which has not been alleged here), or “to transmit or
otherwise communicate a performance or display of the work to a [public place] or to
the public, by means of any device or process, whether the members of the public
capable of receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times.” 17 U.S.C. § 101. Thus,
in order to directly infringe the public performance right with respect to a motion
picture on the Internet, one must “transmit or otherwise communicate” that work.
Both “transmit” and “otherwise communicate” have well-established
definitions. To “transmit” is defined in the Copyright Act: “To ‘transmit’ a
The opinion below couched the question in terms of “display,” SA19, but this is, as
a technical matter, incorrect. To “perform” a work means “in the case of a motion
picture or other audiovisual work, to show its images in any sequence or to make
the sounds accompanying it audible.” 17 U.S.C. § 101. To “display” a work, by
contrast, means “in the case of a motion picture or other audiovisual work, to show
individual images nonsequentially.” Id. Thus, the right implicated by the playback
of a video is the right of performance, not that of display.
4

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performance or display is to communicate it by any device or process whereby
images or sounds are received beyond the place from which they are sent.” 17
U.S.C. § 101. The meaning of “otherwise communicate” was analyzed in Columbia
Pictures Industries, Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278,
282 (9th Cir. 1989). In that case, the plaintiff argued that a hotel that rented out
videodisc copies of movies to its guests was “otherwise communicat[ing]” those
movies, by providing all of the means for in-room playback of those movies. After
considering the statutory context, the court of appeals held that mere “facilitation”
of a performance does not “otherwise communicate” the work. Id. “In sum,” the
court held, “when one adds up the various segments of clause (2), one must conclude
that under the transmit clause a public performance at least involves sending out
some sort of signal via a device or process to be received by the public at a place
beyond the place from which it is sent.” Id. Accordingly, the court of appeals held
that the hotel “does not ‘communicate’ the in-room performances at all.” Id. at 281.
This statutory framework shows that whether myVidster, by the operation of
its web site, itself transmits or sends copyrighted works by signals to the public is a
central question. To answer that question, we must look to the technical details of
how websites like myVidster work.
TECHNICAL BACKGROUND
The proper application of copyright law to this case depends on an accurate
understanding of how the World Wide Web works—specifically, who transmits,
and what is transmitted, as a user interacts with a site like myVidster and the
webpages to which it links. This focus on the technological details reveals two
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things: first, that myVidster does not transmit the videos at issue and, second, that
both “embedding” and “hypertext linking” are fundamentally methods of pointing to
an address where content may be found.
I.

The Web
At its core, the Web consists of a set of technologies that act as a global file

retrieval system, allowing users connected to the internet to retrieve content stored
on remote servers anywhere in the world:
The Web is data: a vast collection of documents containing text, visual
images, audio clips and other information media that is accessed through the
Internet. Computers known as “servers” store these documents and make
them available over the Internet…. Users access documents by sending
request messages to the servers that store the documents. When a server
receives a user’s request…, it prepares the document and then transmits the
information back to the user.
In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 501 (S.D.N.Y. 2001).
Computer users generally interact with web sites through a browser, a computer
program running on the user’s own computer that sends the requests for content to
web servers, receives the transmission of that content from the server, and renders
that transmitted content on the screen for the user to see.
II.

The HTML “Recipe”
When a user types the address of a webpage she wants to visit into her

browser (or clicks a link, which essentially automatically enters the address of the
page for her), the browser sends a request to the server at that address for the
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appropriate webpage. The server responds by transmitting a file back to her
browser. The file that is transmitted is typically a text document written in
HyperText Markup Language (HTML) that contains (1) the textual content of the
requested page, (2) Uniform Resource Locators (URLs) 5 that point to additional
content to be incorporated into the web page, and (3) “tags” that specify how the
content should be laid out. In essence, the HTML file acts like a recipe for the
webpage requested, describing what ingredients are needed, where those
ingredients may be found, and how those ingredients should be combined in order
to generate the webpage in question.
III.

Links: Identifying the “Ingredients” in the Recipe
After receiving this HTML “recipe” file, the browser makes a series of

requests for the other “ingredients” it needs in order to render the webpage.
Depending on where that other content is located, it may be transmitted either from
the same server as the initial webpage request, or from other servers. For example,
when a user submits a search query (e.g., “marques salsaindy”) to myVidster’s
search box, myVidster’s servers respond by transmitting an HTML file that,
when rendered by the user’s browser, displays a series of thumbnail images and
information about the videos in question:

A URL is a string of characters conforming to a standardized format, which refers
to a resource on the internet (such as a document or an image) by its location.

5

8

See http://www.myvidster.com/search/?q=marques+salsaindy. The content making
up this “results page,” comprising text, images, and links, happens to be
transmitted from myVidster’s own servers. For example, the HTML code 6 which
causes the browser to show the first thumbnail on the page, pertaining to the video
titled “Marques and Jennifer Luna of SalsaIndy,” is as follows:
<img
src="http://images.myvidster.com/user/images/youtube/31/105
0712428_1.jpg" height="75" width="100" border="0" />

One may view the HTML code underlying any web page by using the “View
Source” function in one’s web browser. That is the method by which the information
in this example was ascertained.

6

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This tag tells the browser to fetch an image (“img”) and then tells the browser the
source from which to obtain that image (“src=”). Here, the source is a particular
file, separate from the HTML file for the web page, that resides in a particular
directory on the myVidster images server
(“http://images.myvidster.com/user/images/youtube/31/1050712428_1.jpg”). 7 The
tag then tells the browser at what size to display the image (“height=” and
“width=”), and indicates the thickness of the border to place around the image
(“border=”). This tag results in the display of the image on the page:

IV.

Some Links Embed Videos
When the user clicks on the top-most search result on the “marques

salsaindy” results page, the following page is displayed:

The term “youtube” appears in the URL not to identify the server on which the
image is hosted, but instead to identify a particular location on that server, which
myVidster has chosen to identify as “/user/images/youtube/31/.”

7

10

See http://www.myvidster.com/video/2931/Marques_and_Jennifer_Luna_
of_SalsaIndy. Some of the elements of this page (for example, the myVidster logo
and the text on the page) are transmitted from myVidster’s own servers. But
critically, the video itself is not transmitted by myVidster’s servers, but instead by
YouTube’s servers. We can determine this by looking at the HTML instruction
which tells the browser to show the video itself:
<iframe width="640" height="385"
src="http://www.youtube.com/embed/8Ecv86o6kLM?wmode=opaque&
theme=light" frameborder="0" allowfullscreen></iframe>
This HTML tag tells the browser to create an inline frame (“iframe”) in which
content from another web page is to appear. It tells the browser how big to make

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that frame (“width=” and “height=”) and then tells the browser the source from
which to obtain that other web page (“src=”). Here, that source is a particular
location not on myVidster’s servers, but on YouTube’s servers
(“http://www.youtube.com/embed/8Ecv86o6kLM?wmode=opaque&theme=light”). If
a user decides to watch the video, myVidster’s servers do not transmit it; YouTube’s
servers do. Because the YouTube video is transmitted by YouTube’s servers for
display by the user’s browser in the context of the myVidster web page, it is said to
be “embedded” in the layout of the myVidster web page. 8 If the user’s browser is
able to reach myVidster’s servers but unable to reach YouTube’s servers, the video
cannot be displayed:

The pornographic videos at issue in this case were not posted on YouTube (which
does not allow pornographic videos), but instead on other video hosting websites,
such as redtube.com, which do allow such videos. See SA100-49 (identifying, in the
column “EMBEDED [sic] URL,” the source URLs for the videos in question). Some
of the listed videos appear to have been hosted by myVidster itself, but we
understand those videos not to be at issue in this appeal. See Gunter Br., ECF No.
11, at 4 n.2 & 8 n.4.
8

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V.

Other Links Are Hypertext References
The myVidster web page for this video also includes a link to the YouTube

page about this video in the lower right of the screen. This link appears as follows
in the user’s browser:

This appears as the result of the following HTML tags:
<B>Source Link:</B>
<a href="http://www.youtube.com/watch?v=8Ecv86o6kLM"
target="_blank">www.youtube.com</a>
This HTML code instructs the browser to display the text “Source Link:” in boldface
type (“<B>” and “</B>”). It then indicates that the text “www.youtube.com” should
be presented as a link (a “hypertext reference” or “href”) which refers to the web

13

address http://www.youtube.com/watch?v=8Ecv86o6kLM, which is the YouTube
page for the video. Instead of instructing the browser to show the video, as with the
“iframe” link, this code instructs the browser to show a clickable link to that same
video.
VI.

Salient Conclusions to be Drawn
The above example underscores two salient facts.
First, myVidster never transmits the underlying videos at issue here; those

are transmitted directly from the server of the third-party website, such as
YouTube (or RedTube) on which they appear. What one who posts a link on
myVidster provides, and what myVidster transmits, is the address of the thirdparty server (“<iframe . . . src="http://www.youtube.com/embed/8Ecv86o6kLM . .
.”) where the video in question may be found, much as TV Guide provides the
time and channel where a TV program may be found.
Second, there is no fundamental difference between the “iframe” instruction
which results in the video appearing in the context of the myVidster web page
and the “href” instruction which results in the appearance of a hypertext link.
In both cases, the user’s browser receives a URL pointing to content stored on a
server, accompanied by instructions that suggest how the content should be
formatted in the browser window. While “iframe” embedding and “href” hypertext
linking may result in different user experiences, they are both fundamentally just
“links”—pointers to addresses where content may be found. In both cases, it is
the server specified in the URL that transmits the content itself. The link is

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simply a pointer to the server from which the content may be requested by the
user’s browser.
ARGUMENT
I.

Linking is not direct copyright infringement.
As noted above, in order to be liable as a direct infringer of the exclusive right

of public performance, one must transmit or otherwise communicate the
copyrighted work in question. With respect to “embedded” videos, myVidster does
not transmit or otherwise communicate the copyrighted video; a third-party site
does. MyVidster, as shown above, transmits only the URL identifying the location
of that video on a third party’s web server. Transmitting the URL is not the same
thing as transmitting the video, as the URL is not itself a copyrighted work. As the
Perfect 10 court put it (in the context of linking to images rather than videos):
Instead of communicating a copy of the image, Google provides HTML
instructions that direct a user’s browser to a website publisher’s computer
that stores the full-size photographic image. Providing these HTML
instructions is not equivalent to showing a copy. First, the HTML
instructions are lines of text, not a photographic image. Second, HTML
instructions do not themselves cause infringing images to appear on the
user’s computer screen. The HTML merely gives the address of the image to
the user’s browser. The browser then interacts with the computer that stores
the infringing image. It is this interaction that causes an infringing image to
appear on the user’s computer screen. Google may facilitate the user’s access
to infringing images. However, such assistance raises only contributory
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liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545
U.S. 913, 929-30, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005), Napster, 239 F.3d
at 1019, and does not constitute direct infringement of the copyright owner’s
display rights.
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d at 1161.
II.

Linking can potentially be contributory or vicarious copyright
infringement under some circumstances.
To say that linking can never be direct copyright infringement is not to say

that linking can never lead to copyright liability of any sort. Copyright law has
well-developed doctrines of secondary liability—contributory infringement and
vicarious infringement—which can hold liable a culpable party when that party has
not, himself, done an act which directly infringes one of the exclusive rights. The
specific requirements of these doctrines may be inquired into in the context of
linking in the same way that they are applied to any other activity. “To support a
claim for contributory copyright infringement, a plaintiff must demonstrate (1)
direct infringement by a primary infringer, (2) the defendant’s knowledge of the
infringement, and (3) the defendant’s material contribution to the infringement.”
Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005)
(citations omitted). “[A] defendant is vicariously liable for copyright infringement if
it has the right and ability to supervise the infringing activity and also has a direct
financial interest in such activities.” Hard Rock Cafe Licensing Corp. v. Concession
Servs., Inc., 955 F.2d 1143, 1150 (7th Cir. 1992) (internal quotation marks omitted).

16

Thus, holding that myVidster is not a direct infringer—or that its users are
not direct infringers—will not leave Flava Works without a path to a possible
remedy. If Flava Works can show that myVidster or its users had knowledge of
infringement and that their activities were intended to materially contribute to that
infringement, myVidster or its users could potentially be liable as contributory
infringers. If Flava Works can show that myVidster or its users had the right and
ability to supervise the particular infringing performances and also had a direct
financial interest in those performances, myVidster or its users could potentially be
liable as vicarious infringers. But one cannot simply say, as the court below did,
that myVidster must be enjoined because there has been infringement by someone,
somewhere, that was facilitated by the operation of the myVidster website.
By rejecting the “server test” established in Perfect 10 v. Amazon.com, the
district court has imperiled the investment decisions and licensing arrangements
that have been made in reliance on that well-founded approach. For example,
YouTube has licensed millions of audio and video works for public performance on
its service. The videos that have been licensed on YouTube are, in turn, embedded
on innumerable third-party webpages, blogs, and social networking services
(including Facebook). If each embed link were to create direct infringement liability
for those who want to incorporate a YouTube video into their own sites, this would
sow chaos by potentially requiring each site to get its own public performance
license for each video. This disruption in settled legal expectations would create

17

complexity and deter innovation, without delivering any commensurate benefit to
copyright owners or Internet users.
III.

MyVidster is not liable as a tertiary copyright infringer, because
there is no such thing as tertiary copyright infringement.
Every claim of secondary copyright infringement must derive from a claim of

direct copyright infringement. Assessment Techs. of WI, LLC v. WIREdata, Inc., 350
F.3d 640, 644 (7th Cir. 2003) (“since there would thus be no direct infringement,
neither would there be contributory infringement”). A claim of secondary
infringement cannot, however, derive from another claim of secondary
infringement. One cannot be liable for contributing to contributory infringement;
one must contribute to direct infringement in order to be liable. One cannot be
liable for failing to exercise one’s right to control a vicarious infringer; one must
have the right and ability to supervise a direct infringer in order to be liable. See,
e.g., Perfect 10, Inc. v. VISA Int’l Serv. Ass’n, 494 F.3d 788, 804 (9th Cir. 2007)
(declining to impose liability on credit card networks who materially contributed to
the activities of merchant banks who in turn provided services to infringers); UMG
Recordings, Inc. v. Veoh Networks Inc., No. 07-5744 AHM, 2009 WL 334022 (C.D.
Cal. Feb. 2, 2009) (dismissing copyright claims against investors who provided
capital to a company alleged to have engaged in contributory and vicarious
copyright infringement); Katz v. Napster, Inc., No. 11 Civ. 4725-MHP (N.D. Cal.
July 9, 2001) (“Under this formulation, Napster users are the direct infringers,
Napster is the secondary infringer and the individual [investors in Napster] are
tertiary infringers. The court finds no support for this proposition. Rather, courts

18

have consistently held that liability for contributory infringement requires
substantial participation in a specific act of direct infringement.”).
Thus, in order to show that myVidster may be a contributory or vicarious
infringer, Flava Works must show, among other things, that some myVidster user is
a direct infringer, not merely a contributory or vicarious infringer. 9 Flava Works
would then need to prove the other elements of contributory or vicarious
infringement before secondary liability could attach.
CONCLUSION
A link is simply a pointer, whether it results in a file from another server
being displayed in the context of the same web page or results in a hypertext link to
another web page. As such, linking in and of itself cannot be direct copyright
infringement. In order to hold a defendant liable for linking, a plaintiff must show
that the defendant meets all of the elements of one of the well-developed secondary
copyright liability doctrines. And a plaintiff must show contribution to or right and
ability to control direct infringement, not merely facilitation of infringement
through some other indirect infringer. This distinction between direct and
secondary liability, established in Perfect 10, is critical to the continued vitality of
innovation on the Internet.

Amici take no position on the question whether myVidster fulfilled the
prerequisites for the application of any of the 17 U.S.C. § 512 safe harbors. Amici
argue only that to the extent the question at bar is whether myVidster is a
contributory or vicarious infringer, plaintiffs must show, among other elements,
that a myVidster user has engaged in direct infringement to which myVidster has
materially contributed or which myVidster had the right and ability to control.

9

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DATED: November 30, 2011

Respectfully submitted,

Of Counsel:

/s/ Joseph C. Gratz
Joseph C. Gratz
DURIE TANGRI LLP
Attorneys for Amici Curiae
Google Inc. and Facebook, Inc.

Fred von Lohmann
Oliver Metzger
GOOGLE INC.
1600 Amphitheatre Parkway
Mountain View, CA 94043
650-253-0000
Richard Nessary
FACEBOOK, INC.
1601 S. California Avenue
Palo Alto, CA 94304
650-543-4800

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that
this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)(A),
because it is written in 12-pt Century Schoolbook font, and with the type-volume
limitations of Fed. R. App. P. 32(a)(7)(B), because it contains 4,325 words, excluding
the portions excluded under Fed. R. App. P. 32(a)(7)(B)(iii). This count is based on
the word-count feature of Microsoft Word.

DATED: November 30, 2011

/s/ Joseph C. Gratz
Joseph C. Gratz
DURIE TANGRI LLP
Attorneys for Amici Curiae
Google Inc. and Facebook, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on November 30, 2011, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Seventh
Circuit by using the CM/ECF system. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the CM/ECF
system.
DATED: November 30, 2011

/s/ Joseph C. Gratz
Joseph C. Gratz
DURIE TANGRI LLP
Attorneys for Amici Curiae
Google Inc. and Facebook, Inc.

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