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

Filing 29

Appellee's brief filed by Appellee Flava Works, Inc. Paper copies due on 04/04/2012 Electronically Transmitted. [6385103][29] [11-3190] (RT)

No. 11-3190

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

FLAVA WORKS, INC.,
Plaintiff-Appellee,
v.

MARQUES RONDALE GUNTER d/b/a myVIDSTER.com. and SalsaIndy, LLC,
Defendants-Appellants.

Appeal From The United States District Court For The Northern District of Illinois,
Eastern Division Case No. 1:10-cv-06517
The Honorable Judge John F. Grady

BRIEF OF THE PLAINTIFF-APPELLEE, FLAVA WORKS, INC.

Meanith Huon
The Huon Law Firm
PO Box 441
Chicago, Illinois 60690
Phone: [phone]
Fax No.: [phone]
E-mail: [e-mail]
IL ARDC. No.: 6230996
Attorneys for Plaintiff-Appellee, Flava Works, Inc.

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Appellate Court No: 11-3190
Short Caption: Flava Works, Inc. v. Marques Rondale Gunter, et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a
non-governmental party or amicus curiae, or a private attorney representing a government party,
must furnish a disclosure statement providing the following information in compliance with
Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the
disclosure statement must be filed within 21 days of docketing or upon the filing of a motion,
response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an
amended statement to reflect any material changes in the required information. The text of the
statement must also be included in front of the table of contents of the party's main brief. Counsel
is required to complete the entire statement and to use N/A for any information that is not
applicable if this form is used.
[
]
PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR
REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a
corporation, you must provide the corporate disclosure information required by Fed. R. App. P
26.1 by completing item #3):
Flava Works, Inc.
(2) The names of all law firms whose partners or associates have appeared for the party in the case
(including proceedings in the district court or before an administrative agency) or are expected to
appear for the party in this court:
The Huon Law Firm
(3) If the party or amicus is a corporation:
I) Identify all its parent corporations, if any; and
None
ii) list any publicly held company that owns 10% or more of the party's or amicus' stock:
None
Attorney's Signature: /s/ Meanith Huon
Date: March 28, 2012
2

Attorney's Printed Name:

Meanith Huon

Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule
3(d). Yes
X
No
Address: PO Box 441, Chicago, IL 60690
Phone Number: (312) 4052789
Number: [phone]
E-Mail Address:

3

Fax
[e-mail]

TABLE OF CONTENTS
PAGE
DISCLOSURE STATEMENT................................................................................................2
TABLE OF CONTENTS.........................................................................................................4
TABLE OF AUTHORITIES...................................................................................................5
JURISDICTIONAL STATEMENT.........................................................................................7
STATEMENT OF THE ISSUES.............................................................................................7
STATEMENT OF THE CASE.................................................................................................8
STATEMENT OF FACTS .......................................................................................................8
SUMMARY OF ARGUMENT ..............................................................................................18
ARGUMENT ..........................................................................................................................20
I.
FLAVA WORKS HAS SHOWN A LIKELIHOOD OF SUCCESS
ON THE MERITS....................................................................................................................20
A. THE PERFECT 10 CASE DOES NOT APPLY...............................................................21
B.
UNCONTRADICTED EVIDENCE WAS PRESENTED BY BOTH PARTIES TO THE
DISTRICT COURT THAT THE MYVIDSTER.COM DEFENDANTS KNEW ITS USERS
WERE INFRINGING...............................................................................................................28
C.
MYVIDSTER.COM HAS NO REPEAT INFRINGER POLICY................................30
.
III.
THE DISTRICT COURT CAN PRESUME IRREPARABLE
HARM........................................................................................................................................31
IV.

THE DISTRICT COURT=S ORDER WAS APPROPRIATE.......................................33

CONCLUSION..........................................................................................................................36
CERTIFICATE OF COMPLIANCE WITH FRAP RULE 32(a)(7)..........................................37
PROOF OF SERVICE ...............................................................................................................38

4

TABLE OF AUTHORITIES
CASES
Atari,
672
33

Page(s)
Inc. v. North Am.
Philips Consumer Elecs. Corp.,
F. 2d
607, 620 (7th Cir. 1982)..........................................................7, 19, 32,31,

East St. Louis Laborers' Local 100 v. Bellon Wrecking & Salvage Co.,
414 F.3d 700 (7th Cir. 2005).......................................................................................33
Graham v. Medical Mut.,
130 F.3d 293 (7th Cir. Ill. 1997)..................................................................................33
In re Aimster Copyright Litig.,
334 F.3d 643 (7th Cir. 2003) .......................................................................................7, 18, 20, 26
28,29, 33
Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc.,
2010 U.S. Dist. LEXIS 85266 (N.D. Cal. Mar. 19, 2010)............................................26
Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007) ......................................................................................18, 21, 24, 25
26, 28,
Perfect 10 v. Google, Inc.,
416 F. Supp. 2d 828 (C.D. Cal. 2006) ..........................................................................26
Perfect 10, Inc. v. Google, Inc.,
2008 U.S. Dist. LEXIS 79200 (C.D. Cal. July 16, 2008)..............................................27
Playboy Enterprises, Inc. v. Webbworld, Inc.,
991 F. Supp. 543 (N.D. Tex. 1997)................................................................................24
Righthaven LLC v. Choudhry,
2011 U.S. Dist. LEXIS 48290 (D. Nev. May 3, 2011)...................................................26
Scandia Down
Corp. v. Euroguilt, Inc.,
772 F.2d 1423 (7th Cir. 1985).............................................................................19
Wolk v. Kodak Imaging Network, Inc.,
No. 10-Civ-413(RWS), 2011 WL 940056
(S.D.N.Y. March 17, 2011).............................................................................................36
STATUTES
17 U.S.C. ' 101................................................................................................................22, 23, 25
5

17 U.S.C. ' 106...................................................................................................................23, 25
17 U.S.C. ' 512...................................................................................................................10, 28

OTHER AUTHORITIES
H.R. Rep. No. 94-1476, at 64 (1976),
reprinted in 1976 U.S.C.C.A.N. 5659, 5677.........................................................................22, 23

6

STATEMENT OF JURISDICTION
The jurisdictional statement of the Defendants-Appellants is complete and correct.

STATEMENT OF THE ISSUES
I.

Whether the District Court correctly held that Plaintiff, Flava Works, Inc., has shown

some likelihood of success in proving contributory copyright infringement, when uncontroverted
evidence was presented that the myVidster.com Defendants knew that its users were posting,
sharing, and copying copyrighted videos on its website.
II.

Whether the District Court correctly held that myVidster.com=s Arepeat infringer@ policy

was no policy at all, because the myVidster.com Defendants conducted no investigation.
III.

Whether the District Court correctly relied on the 7th Circuit decision in Atari,

North Am.

Philips Consumer Elecs. Corp., 672

F. 2d

607,

Inc. v.

620 (7th Cir.

1982) that irreparable harm can be presumed in a copyright infringement case and on the
testimonies of Phillip Bleicher, Flava Works, Inc.=s CEO and Defendant, Marques Gunter.
IV.

Whether the language in the District Court=s order requiring myVidster.com to filter out

Flava Works, Inc. trademarks and implement a repeat infringer policy was an appropriate relief.

7

STATEMENT OF THE CASE
Plaintiff-Appellee, Flava Works, Inc. (“Flava Works”), filed its complaint against
Defendant Marques Gunter d/b/a myVidster.com and SalsaIndy, LLC (the AmyVidster.com
Defendants@) and other defendants for copyright and trademark infringement. Flava Works
moved for a preliminary injunction.

On May16, 2011 and June 9, 2011, the District Court heard

testimony by the Phillip Bleicher, CEO of Flava Works, and Mr. Gunter. Documentary evidence
was submitted to the District Court.

On July 27, 2011, the District Court granted Flava Works'

Motion for Preliminary Injunction.
The myVidster.com Defendants filed a Motion to Reconsider on August 15, 2011. Stating
that it would address the argument on its merits despite the fact that it could and should have been
presented to the District Court at the time of the hearings, the District Court took the matter under
advisement and, on September 1, 2011, denied the Motion to Reconsider.

STATEMENT OF FACTS
Plaintiff-Appellee, Flava Works, Inc. will cite to each document in the original record by
citing the Document No. and PageID number of the U.S. District Court electronic civil docket as
Doc No.___, PageID ___. Plaintiff will cite to each document in the Defendants-Appellants=
Separate Index by using the same abbreviation used by the Defendants-Appellants: SA___.
Flava Works is a gay ethnic adult company that produces magazines, DVDs, videos
online, video on demand online, and pictures (Doc. 78, PageID 1430). Phillip Bleicher is the
CEO of Flava Works His duties include programming, serving as webmaster, and monitoring
copyrights use and violations (Doc. 78, PageID 1430).
Mr. Bleicher received complaints from his customers that they were paying for videos that
8

were available for Afree@ on myVidster.com (Doc. 78, PageID 1430). Mr. Bleicher did a search
for Flava Works’ trademarks on myVidster.com and found hundreds of Flava Works, Inc.’ videos
on myVidster.com (Doc. 78, PageID 1430). The search produced thumbnail images of Flava
Works= copyrighted images that had been posted without Flava Works= permission. By clicking on
the thumbnail images, Mr. Bleicher was redirected to the Flava Works= videos that were posted on
myVidtser.com

(Doc. 78, PageID 1431). Comments were posted by myVidster.com users next

to the videos seeking more content belonging to Flava Works (Doc. 78, PageID 1431). Mr.
Bleicher identified screenshots of Flava Works’ videos that he downloaded from the
myVidster.com website. He also identified a screenshot of the button on myVidster.com that
states Adownload@ (Doc. 78, PageID 1433; Doc. 109).
Mr. Bleicher testified that the Flava Works= videos state that the videos are copyrighted or
that Flava Works’ videos contain a watermark indicating that the videos are copyrighted (Doc. 78,
PageID 1435). Flava Works’ videos contain the AFBI@ copyright warning that the videos are
copyrighted (Doc. 78, PageID 1436).
Mr. Bleicher identified as Plaintiff=s Group Exhibit No. 2 as being screenshots of videos
posted on myVidster.com by repeat infringers (Doc. 78, PageID 1437; Doc. 109). The repeat
infringers were the same users that Flava Works had notified myVidster.com about months prior to
the hearing on Flava Works= motion for a preliminary injunction. The repeat infringers continue to
post Flava Works= videos on myVidster.com (Doc. 78, PageID 1437-1438).

Mr. Bleicher

testified that hundreds of myVidster.com users were or are posting Flava Works= videos on
myVidster.com without permission. However, Flava Works decided only to sue the repeat
infringers who were repeatedly posting Flava Works=s videos on myVidster.com and not every

9

infringer (Doc. 78, PageID 1438). Mr. Bleicher testified that the myVidster.com Defendants did
not remove all of the Flava Works= videos identified in the DMCA take down notices, pursuant to '
512 of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. ' 512. He testified that the
myVidster.com Defendants allow repeat infringers to continue posting Flava Works, Inc.= videos
on the myVidster.com website (Doc. 78, PageID 1438).
Mr. Bleicher testified that Exhibits A, B, C, and D of the complaint are copyright
registrations for some of the Flava Works= videos that have been posted on the myVidster.com
website without permission (Doc. 78, PageID 1440). He testified that exhibits H, I, J, K, L, and M
are the DMCA takedown notices that Flava Works sent to myVidster.com (Doc. 78, PageID 1442).
Mr. Bleicher testified to DMCA takedown notices that were recently sent to myVidster.com (Doc.
78, PageID 1446). Mr. Bleicher testified that when he sent the DMCA notices to myVidster.com,
Mr. Gunter either did not remove the content or all of the content. Often, Mr. Gunter never
removed the copyrighted thumbnail images (Doc. 78, PageID 1442).
Mr. Bleicher testified that, as part of his investigation, he found that the source link for
many of Flava Works= videos posted on myVidster.com was myVidster.com and not a third-party
website (Doc. 78, PageID 1443).

The Asource link@ is server or website from which the video file

is hosted. Mr. Bleicher testified that Plaintiff=s Exhibit No. 7 is a search result showing that 79,000
video files on myVidster.com identified myVidster.com as the source link (Doc. 78, PageID 1452;
Doc. 109). Mr. Bleicher testified that Plaintiff=s Exhibit No. 9 was Marques Gunter=s Favorite
Page on myVidster.com. On that Favorite Page, Mr. Gunter posted full-length movies of Star
Trek, Hancock and Crank II and music videos copyrighted by Warner Brothers and Sony

(Doc.

78, PageID 1453-1454; Doc. 109).
Mr. Bleicher testified he spent a significant amount of time policing the myVidster.com
10

website for copyrighted videos. He testified that after a particular Flava Works video was
removed, another post for the same video would resurface. He explained how easy it would be for
Mr. Gunter to install a filter to prevent the same videos from being uploaded (Doc. 78, PageID
1455).
Flava Works contends that videos that were the subject of DMCA takedown notices sent to
myVidster.com continued to remain on myVidster.com=s website, after Mr. Gunter claims that the
videos had been removed. Flava Works produced screenshots of those videos as Plaintiff=s Group
Exhibit No. 2. (Doc. 106, PageID 2140; Doc. 109).
Mr. Bleicher testified that myVidster.com does not follow the industry standards set in
place by websites like YouTube.com. According to Mr. Bleicher, unlike myVidster.com,
YouTube.com does not allow the uploading of the same video twice, does not allow users to bypass
private directories, and has filters to block hotlinking (Doc. 78, PageID 1450). Mr. Bleicher
testified that Mr. Gunter discusses on his blog that myVidster.com can bypass sites that blocks
hotlinking. Mr. Bleicher testified that hotlinking allows a user to link his post on myVidster.com
to the actual image or video found on the server of another website. Mr. Bleicher testified that
based on industry standards, webmasters view hotlinking as stealing bandwith from the server that
acts as the original source of the video (Doc. 78, PageID 1448). Mr. Bleicher testified that
myVidster.com is more like Piratebay.se, which maintains an index of mostly stolen copyrighted
content (Doc. 78, PageID 1451).
Mr. Bleicher testified that myVidster.com provides more features than just bookmarking or
posting of videos. myVidster.com allows users to make backup copies of the videos.
myVidster.com also allows users to comment on and discuss videos. Users can ask other users to
post or repost copyrighted videos. myVidster.com creates thumbnail images of the videos,
11

allowing for search capability by images or videos. Users can also post detailed description of the
videos that can later by searched by other users (Doc. 78, PageID 1459).
Mr. Bleicher testified that he has been monitoring the myVidster.com website for some
time. He has observed a correlation between the declining sales of Flava Works= videos and the
growing popularity of myVidtser.com. He testified that shortly after a Flava Works= video has
been edited and posted on its paid members= website, the video is posted without permission and
made available for free by users on myVidster.com

(Doc. 78, PageID 1461). Flava Works is

losing customers who can get the same video for free on myVidster.com.

People are also being

conditioned to believe that they can get Flava Works, Inc. videos for free (Doc. 78, PageID 1462).
New released videos produced by Flava Works have been posted on myVidster.com without
permission (Doc. 78, PageID 1462).
The District Court correctly found that:
Flava's sales are down thirty percent from last year, which equates to a estimated loss of
between $100,000 and $200,000, while the number of myVidster users has grown to over
70,000 since the site was created a few years ago. In addition, myVidster grew from 67,000
visits per month from October 2009 to about 460,000 visits in April 2010. Bleicher
attributes at least some of Flava's lost sales to myVidster because hundreds of Flava's
videos have appeared (and still appear) on myVidster (SA24).
Marques Gunter is the owner and sole-programmer of myVidster.com (Doc. 78, PageID
1518). Mr. Gunter=s view on copyright is that he is not in a position to judge whether a full-length
movie or video posted on myVidster.comBlike Star Trek-- is copyrighted content (Doc. 78,
PageID 1523). Mr. Gunter has a full-length Star Trek movie on his myVidster.com Favorite Page
(Doc. 78, PageID 1523). Mr. Gunter=s view is that if a video is publicly available on the Internet,
he will not make an assessment as to whether or not that video is copyrighted (Doc. 78, PageID
1527).
12

The District Court keenly observed that:
In any event, although it does appear that it was sometimes like pulling teeth to obtain
full compliance from Gunter, as discussed infra, the crux of the problem here is not so
much the removal of the infringing videos; it is Gunter's attitude toward copyright
protection and his related refusal to adopt measures to prevent or reduce copyright
infringement on myVidster as well as to adopt and implement an appropriate
policy regarding repeat infringers (SA23).
More than 50% of the videos posted on myVidster are porn, gay adult videos, ethnic gay
adult videos, or adult videos (Doc. 78, PageID 1524).

The gay community is the biggest

community on myVidster.com (Doc. 78, PageID 1524).
myVidster.com allows users to surf the Internet for videos and to display videos by
embedding the code and to posting the code on myVidster.com (Doc. 78, PageID 1537).

The user

can share the embedded video with others and link the embedded videos to other websites (Doc.
78, PageID 1538).

Mr. Gunter created a Adownload@ button on myVidster.com that allows users

to download the videos if the links are active to the source of the video (Doc. 78, PageID 1524).
A premium user of myVidster.com can also make a backup copy of the embedded video
(Doc. 78, PageID 1538).

The backup copy is stored on the myVidster.com website.

A

premium user has to pay a monthly fee of $3 a month, $5 a month or $12 a year (Doc. 78, PageID
1538). During the beta testing period of myVidster.com, Mr. Gunter gave his users 500 megabytes
of storage space to back up videos for free more (Doc. 78, PageID 1555).

Any videos backed up

during that period of time remain on myVidster.com=s servers more (Doc. 78, PageID 1555). A
screenshot produced by myVidster.com indicates that this free backup service was available for
several months (Doc. 106, PageID 2143-2144).
The user can tag the videos with keywords or trademarks like AFlava Works@ or
ACocoDorm@ (Doc. 78, PageID 1538).

myVidster.com indexes these tag words and make them
13

searchable by users looking for videos with the key words like AFlava Works@ (Doc. 78, PageID
1538).
The District Court found that myVidster.com does not simply link to video files displayed
on another site; it embeds the files on its own site at the direction of users. In other words, the
thumbnail image is hosted on myVidster's servers (SA19). When a visitor to myVidster.com
clicks on a video that is posted there, the video plays directly on myVidster.com, and the visitor
remains on the myVidster.com site; he or she is not taken to the site that hosts the video file (SA20).
The myVidster.com Defendants produced a chart at the hearing. The District Court
doubted the reliability of the chart:
Defendants' Hearing Exhibit 4 is a chart that Gunter created that purports to
show every embedded video containing plaintiff's content that Gunter has removed from
myVidster since plaintiff began sending DMCA notices. The chart includes the date that
the DMCA notice for the particular video was received as well as the date Gunter
removed the video. (June Tr. 21-25.) We noted during the hearing that plaintiff's
counsel could not possibly conduct effective cross- examination regarding the chart
because defendants' counsel refused to tender it to him until the moment it was given
to Gunter on the stand. Moreover, we have doubts about the reliability of the chart.
Although Gunter testified that he created it from a "data dump from myVidster's
database," he did not provide any more detail about how it was prepared or explain how
the information he "dumped" was originally recorded. Moreover, the e-mail exchanges
between Flava and Gunter show that Gunter did not always fully comply with the
DMCA notices; even when he represented that certain content had been removed, it
was not always fully removed, and Flava was forced to follow up with Gunter in an
effort to have the entire content related to a particular file removed (SA23).
The chart actually proves that myVidster.com continues to host videos that Mr. Gunter had
represented to Flava Works, Inc. as having been removed (Doc. 106, PageID 2129). The chart
conflicted with another Defense exhibit produced by myVidster.com as to which videos had been
removed, after being served with a DMCA takedown notice from Flava Works
PageID 2132-2133).

(Doc. 106,

The chart also identified myVidster.com as the source link for some

videos—that is, the videos reside on myVidster.com=s servers (Doc. 106, PageID 2133). Another
14

problem with the chart is that it does not identify the users who posted the videos. Thus, the chart
provides no way of identifying who are the repeat infringers (Doc. 106, PageID 2133-2134).
Mr. Gunter=s repeat infringer policy is on a case by case basis regarding how many times a
user can post a copyrighted video before that user is viewed as a repeat infringer (Doc. 78, PageID
1527).

More importantly, when it comes to myVidster.com=s repeat infringer policy, Mr. Gunter

refuses to assess whether a video is copyrighted, if the video is found on a publicly accessible site:
A.
When it comes to myVidster's repeat infringer policy, I cannot, I cannot
determine whether or not the user who links bookmarks of video from a third party web site
to myVidster, I have no idea if they know that them linking that video or submitting that link
to myVidster, if they have knowledge of the copyright status I guess whether or not it's
infringing or not. So when it comes to the subject of them posting links to other web sites
to myVidster, I do not, I would not, I cannot determine whether or not they are an infringer.
I do not what's in their head, I don't know whether or not, if they see a video and they say
okay, I'm going to save this, I'm going to link this link to myVidster, whether or not that link
is infringing or not.
Q.
So if a person who has been accused of repeat infringing reposts a video from a
site that's publicly accessible to members of the public, you wouldn't consider that person
a repeat infringer, that's where your infringer investigation would end, isn't that correct?
(Doc. 78, PageID 1528).
A.
Correct. When a user goes to a publicly available web site, are they supposed to
know whether or not that is infringing material?
And in my humble opinion, it would
be the video -- the person who uploaded and the video host that is the ones that are the
gatekeepers and the determination on whether or not that video, that material is
infringement or not.
Q.
So if I -- if a user, if a user were to find a full-length film of Star Trek which is
copyrighted on Pornhub and which is accessible to everybody of the members of the public,
if that user were to repost it on my video and you looked into that, because the video was
originally found on a publicly accessible video, you wouldn't consider that repeat
infringer?
A.

Correct. (Doc. 78, PageID 1529).

Mr. Gunter=s policy is that if the video is publicly accessible on the Internet, he does not investigate
a potential infringer at all (Doc. 106, PageID 2137-2138). Thus, myVidster.com, for all practical
15

purposes, has no repeat infringer policy.
However, Mr. Gunter admits that he does not know what the agreement is in place between
websites like Hulu.com and owners of copyrighted works that are posted on those websites. He
does not know if the agreement between the websites and the owners of the content that he claims
are publicly available involves a revenue fee sharing agreement (Doc. 106, PageID 2139).
The myVidster.com Defendants contend that in the entire life of the website, it has
identified only one repeat infringer. Mr. Gunter sent that repeat infringer a warning but did not
disable the repeat infringer=s account (Doc. 78, PageID 1532).

Out of 1.3 million videos posted

on myVidster.com=s servers, Mr. Gunter claims he only found one repeat infringer (Doc. 106,
PageID 2135). But Mr. Gunter concedes that certain users continue to post videos of Flava Works,
Inc. (Doc. 78, PageID 1536). The chart produced by the myVidster.com Defendants actually
prove that there was at least one other repeat infringer who was not investigated (Doc. 106, PageID
2137).
myVidster.com allows users to flag a video. The most common flag is that a link is broken
and a video cannot be downloaded or played

(Doc. 78, PageID 1533).

Mr. Gunter filters the

flags: two users have to flag the same video before the flags come to Mr. Gunter=s attention (Doc.
78, PageID 1534).

When a user flags a video for copyright violation, the user gets instructions on

how to send a DMCA takedown notice (Doc. 78, PageID 1536).
myVidster.com has filters for adult and non-adult content (Doc. 78, PageID 1578). But
myVidster.com does not filter out videos with the tag Achild porn@ (Doc. 78, Page ID 1579). It
would not be difficult for Marques Gunter, a self-taught programmer, to write a program to filter
out videos with the tag Achild porn@ (Doc. 78, Page ID 1579). Mr. Gunter can easily filter out
videos with tag words containing the trademarks of Flava Works, Inc., such as ACocoDorms@ or
16

ARaw Rods@ (Doc. 78, Page ID 1579).

That would prevent users from posting videos with

trademarks such as Flava Works.
Mr. Gunter posted a blog on top reasons to use myVidster.com. No. 1 was that
myVidster.com allowed users to bypass YouTube videos that are private or that have been disabled
from viewing (Doc. 78, PageID 1539).

No. 2 was that myVidster.com allows users to make

copies or duplicate of videos on sites that block hotlinking of the videos (Doc. 78, PageID
1540-1541). No. 4 was that myVidster.com users can create a backup copy if the video were to be
removed by the host of the original source of the video (Doc. 78, PageID 1540). Mr. Gunter
posted a blog entry seeking beta testers to test a plug-in for the Fire Fox web browser that would
enabled users to access and post videos that were private and protected (Doc. 106, PageID
2150-2151).
The same video can be posted on myVidster.com hundreds of time or more (Doc. 78,
PageID 1547). Unlike YouTube.com, myVidster.com does not have a function that prevents the
posting of the same video more than once more (Doc. 78, PageID 1548). However, it would not
be difficult to add a function on myVidster.com to prevent the same video from being posted more
than once more (Doc. 78, PageID 1548).
myVidster.com has received DMCA takedown notices from other film companies,
including Pitbull and Black Rain more (Doc. 78, PageID 1550).
myVidster.com generates advertising dollars through Juicy Ads, ad expansion, XNO Clip
(Doc. 78, PageID 1552, 1554). myVidster.com also generates advertising from pay per click ads
(Doc. 78, PageID 1553-1554). From its creation in 2009 to a year later, myVidster.com went from
67,000 hits a month to almost half a million hits a month in 2010 (Doc. 78, PageID 1543).
are more than 70,000 users of myVidster.com (Doc. 78, PageID 1543).
17

There

SUMMMARY OF ARGUMENT
The District Court correctly held that Plaintiff, Flava Works, Inc. has shown a likelihood of
success on the merits.

There was uncontroverted evidence presented by both sides that

myVidster.com users posted infringing materials on the website. Evidence was presented that the
myVidster.com Defendants knew or should have known of the copyright infringement, because
multiple DMCA takedown notices were sent by Plaintiff, Flava Works, Inc. and the myVidster.com
Defendants responded to the DMCA notices.
The case of In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) is on point and
controlling. Like the file-sharing platform in Aimster, myVidster.com provides a video-sharing
platform for users to post, share, and comment on copyrighted videos. Defendants’ argument that
Aimster implicitly adopted a “server test” is not supported by the facts of Aimster. The Aimster
platform did not make copies of the swapped files themselves. Aimster essentially told a user
where he can go to get a copy a music file he was looking for. The transaction did not take place
on the Aimster server. Aimster implicitly rejected any notion of a server test.@
The Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1160-61 (9th Cir. 2007) does
not apply. Unlike Google in Perfect 10, myVidster.com has created a platform that encourages
users to troll the Internet for copyrighted videos and private protected videos, make backup copies,
and display them.

Google does not pick and choose which copyrighted videos to post and

display. Google just simply provide an automated response. The Defendants in this litigation
actively seek out copyrighted content, develop plug-ins or software that bypasses private
encryptions, offers a backup service if the video is removed from the original source, and provides
a forum for users to ask for more stolen content.

Worse, the myVidster.com Defendants indexes

the tag names of these videos and allow the copyrighted videos to be searchable, making
18

myVidster.com an online repository for displaying copyrighted works.
The District Court correctly held that the myVidster.com Defendants= Arepeat infringer@
policy is no policy at all, because Marques Gunter does not investigate potential infringers who post
videos from publicly accessible websites. As the District Court keenly observed, A the crux of the
problem here is not so much the removal of the infringing videos; it is Gunter's attitude
toward copyright protection and his related refusal to adopt measures to prevent

or reduce

copyright infringement on myVidster as well as to adopt and implement an appropriate
policy regarding repeat infringers@ (SA23).
The District Court correctly held that irreparable injury may normally be presumed from
a showing of copyright infringement, relying on Atari,
Consumer Elecs. Corp., 672

F. 2d

607,

Inc. v. North Am.

620 (7th Cir. 1982),

statute on other grounds as recognized in Scandia Down
772 F.2d

1423 (7th

Cir. 1985) .

Philips

superseded by

Corp. v. Euroguilt,

Inc.,

In addition, there was evidence presented by Phillip

Bleicher, CEO of Flava Works, Inc., that Flava Works, Inc.=s loss of customers and 30% drop in
sales correlated with the sharp increase in traffic to myVidster.com where new releases of videos
from Flava Works, Inc. were posted without permission. Mr. Gunter confirmed the sharp rise in
traffic on myVidster.com.
The language in the District Court=s injunction is reasonable and just, in an effort to reduce
the rampant piracy on myVidster.com. Short of shutting down myVidster.com, the District Court
ordered the myVidster.com Defendants to take reasonable steps to comply with the law. The order
essentially requires myVidster.com to implement filters to block Flava Works, Inc.=s trademark
names and to implement a repeat infringer policy. Having proposed no alternative injunction
order in this appeal, the myVidster.com Defendants have waived this issue.
19

ARGUMENT
I.

FLAVA WORKS HAS SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS.
The District Court correctly held that Plaintiff, Flava Works, Inc. has shown a likelihood of

success on the merits of its claim against the myVidster.com Defendants for contributory copyright
infringement.1 After almost two days of hearing testimony, the District Court correctly found that
AThere is uncontradicted evidence that myVidster.com users have created backup copies of Flava's
works, which are stored on myVidster's servers@ and that A. . . defendants' own evidence
demonstrates) that myVidster users have caused Flava's works to be displayed on myVidster
without Flava's permission@ (SA30). Relying on the 7th Circuit=s decision in In re Aimster
Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003), the District Court correctly found held that
there was Ano doubt that defendants knew or should have known of the infringement occurring on
myVidster@ (SA31). Over a period of several months, Plaintiff sent Defendants at least seven
DMCA notices that identified specific infringing files and users as well as specific repeat
infringers.

Furthermore, Defendants received these notices and responded to them (SA31).

The District Court correctly found that Mr. Gunter's "repeat infringer" policy is in fact no
policy with respect to copyright infringement (SA33). Mr. Gunter=s "willful blindness" is
knowledge in copyright law, where he should have known of the direct infringement.

The

District Court, who had the opportunity to observe Mr. Gunter=s demeanor and credibility at the
hearing, found that Mr. Gunter=s Acavalier attitude had not changed. His definition of >repeat
1

The District Court held that ABecause plaintiff has satisfied the standard for a
preliminary injunction with regard to its claim for contributory copyright infringement, we
need not address its claim for vicarious copyright infringement@ (SA30).
20

infringer= does not encompass copyright law@ (SA33). The District Court found Aample evidence
that after having received the DMCA notices from plaintiff, defendants failed to act to prevent
future similar infringing conduct@ (SA33-34).
The District Court further found evidence that Defendants materially contributed to
infringement (SA34). Defendants created the myVidster.com platform, which enables the display
of embedded videos and thus the infringement. Defendants makes video storage (which involves
making a copy of a video) available for a fee. In 2009, Defendants provided the backup storage
free of charge for a limited time (SA34).
The District Court found that Mr. Gunter encouraged copyright infringement by posting full
length motion pictures on his Favorite Page (SA34). The District Court cited to even more
evidence that Mr. Gunter materially contributed to users' infringement. Mr. Gunter admitted that
he did not investigate whether the users identified by plaintiff as repeat infringers were infringing
copyright; he merely investigated whether the users were posting videos containing "content that is
not publicly available@ (SA35-36). As the District Court correctly noted, A the crux of the problem
here is not so much the removal of the infringing videos; it is Gunter's attitude toward
copyright protection and his related refusal to adopt measures to prevent

or reduce

copyright infringement on myVidster as well as to adopt and implement an appropriate
policy regarding repeat infringers@ (SA23).

A. THE PERFECT 10 CASE DOES NOT APPLY.
The District Court correctly held that the 9th Circuit=s decision in Perfect 10, Inc. v.
Amazon.com, Inc., 508 F.3d 1146, 1160-61 (9th Cir. 2007), is not binding on this Court and is
specific to the facts of that case. As the District Court explained:
21

We decline to apply Perfect 10 to this case. The Ninth Circuit's decision is not binding on
this court; moreover, it is highly fact-specific and distinguishable. Defendants assert that
the cases involve "essentially the same technology." Both cases may involve inline
linking,
but the processes are quite different. The relevant comparison is between the
conduct of Google and the conduct of myVidster's users, not between Google and
myVidster.
Both cases may involve inline linking, but the processes are quite different.
The relevant comparison is between the conduct of Google and the conduct of myVidster's
users, not between Google and myVidster. In response to a search query, Google's image
search engine uses an automated process to display search results through inline linking. In
contrast, myVidster's users do not employ any sort of automation to determine which videos
they bookmark; rather, they personally select and submit videos for inline
linking/embedding on myVidster. (And many of those hand-picked videos are infringing.)
Google's use of inline linking is neutral to the content of the images; that of myVidster's
users is not (SA50).
The District Court further correctly held that myVidster.com users cause a video to be
Adisplayed@ by posting the videos on myVidster.com:
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 caus1ng 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 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).
Defendants displayed Flava Works work without permission and made that display
available to the public. The Copyright Act defines "display" as showing a copy of a work.
17 U.S.C. '' 101.

The Act defines a copy as a material object in which a work is fixed, including

the material object in which the work is first fixed. The legislative history of the Act makes clear
that "since 'copies' are defined as including the material object 'in which the work is first fixed,' the
right of public display applies to original works of art as well as to reproductions of them." 17
U.S.C. '' 101; H.R. Rep. No. 94-1476, at 64 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5677.
By inline linking Flava Works, Inc.=s images, the myVidster.com Defendants are showing Flava
Works, Inc.=s original works without permission. The legislative history goes on to state that
22

"'display' would include the projection of an image on a screen or other surface by any method, the
transmission of an image by electronic or other means, and the showing of an image on a cathode
ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval
system." Id. This language indicates that showing Flava Works=s images on a computer screen
would constitute a display.
The Act's definition of the term" publicly" encompasses a transmission of a display of a
work 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.

A display is public even if there is no proof that

any of the potential recipients was operating his receiving apparatus at the time of the transmission.
H.R. Rep. No. 94-1476, at 64-65 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5678. By making
Flava Works= images available on its web site, Defendants are allowing public access to those
images. The ability to view those images is unrestricted to anyone with a computer and internet
access.
The legislative history emphasizes the broad nature of the display right, stating that "each
and every method by which the images or sounds comprising a performance or display are picked
up and conveyed is a 'transmission,' and if the transmission reaches the public in [any] form, the
case comes within the scope of [the public performance and display rights] of section 106." Id. at
64.

Looking strictly at the language of the Act and its legislative history, when the

myVidster.com Defendants import Flava Works= images into myVidster.com=s web page,
Defendants are infringing upon Flava Works= public display right.
In Playboy Enterprises, Inc. v. Webbworld, Inc.,991 F. Supp. 543 (N.D. Tex. 1997), the
court found that the owner of an internet site infringed a magazine publisher's copyrights by
23

displaying copyrighted images on its web site. The defendant, Webbworld, downloaded material
from certain newsgroups, discarded the text and retained the images, and made those images
available to its internet subscribers. Playboy owned copyrights to many of the images Webbworld
retained and displayed. The court found that Webbworld violated Playboy's exclusive right to
display its copyrighted works, noting that allowing subscribers to view copyrighted works on their
computer monitors while online was a display. The court also discounted the fact that no image
existed until the subscriber downloaded it. The image existed in digital form, which made it
available for decoding as an image file by the subscriber, who could view the images merely by
visiting the Webbworld site. Interestingly, the images were retained as both full-sized images and
thumbnails. A subscriber could view several thumbnails on one page and then view a full-sized
image by clicking on the thumbnail. The situation is analogous to myVidster.com. By allowing the
public to view Flava Works= copyrighted works while visiting myVidster.com=s web site,
Defendants created a public display of Flava Works, Inc.= works.
This case highlighted the fact that the defendants took an active role in creating the display
of the copyrighted images. The reason for this emphasis is that Perfect 10 held that Google did not
take any affirmative action that resulted in copying copyrighted works. Google didn=t crawl the
Internet to bypass privately protected full length copyrighted videos and post the videos to its site
for users to share, comment, and make backup copies. myVidster.com encouraged users to post
copyrighted videos and images and generate advertising revenue from the increase in web traffic to
its site from users seeking Flava Works= videos. myVidster.com is liable for contributory
copyright infringement.

Defendants actively participated in displaying Flava Works’ images by

encouraging users to troll the web and find Flava Works’ videos and images. myVidster.com=s
program inline linked, displayed, and/or copied those images and videos within its own web site.
24

Without this program, users would not have been able to view the images within the context of the
myVidster.com site. myVidtser.com acted as more than a passive conduit of the images by
establishing a direct link to the copyrighted images. myVidster.com allowed users to tag the
videos and the tags and keywords were indexed by myVidster.com. Therefore, Defendants are
liable for publicly displaying Flava Works, Inc.=s copyrighted images without its permission.
A U.S. District in Nevada has also noted that the inline linking in Perfect 10 refers to the
automated response of Google=s search engine and did not involve any volitional act on the part of
the users. Righthaven LLC v. Choudhry, 2011 U.S. Dist. LEXIS 48290 (D. Nev. May 3, 2011).
As the Defendants concede, under the Copyright Act (“the Act”), to "display" a work is "to
show a copy of it, either directly or by means of a film, slide, television image, or any other device
or process."17 U.S.C. ' 101. A copyright owner is granted exclusive rights "to display the
copyrighted work publicly." 17 U.S.C. ' 106(5).
"Publicly" is defined to mean:
(1) to perform or display it at a place open to the public or at any place where a substantial
number of persons outside a normal circle of a family and its social acquaintances is
gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place
specified by clause (1) 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 separate places and at the same time or at different times. 17 U.S.C. '
101.
The Internet and World Wide Web is a public place. myVidster.com provides free access
to anyone who registers and signs up. Mr. Gunter cannot argue that these videos are publicly
available on the Internet but not concede that the Internet is a public place.
Unlike myVidster.com, in Perfect 10, Google=s search engine tells a user’s browser where to
find the image in a passive manner. Google does not actively crawl the Internet to collect
25

copyrighted videos and post and distribute them on Google=s AFavorite Page@:
Google's search engine communicates HTML instructions that tell a user's browser where
to find full-size images on a website publisher's computer, but Google does not itself
distribute copies of the infringing photographs. It is the website publisher's computer that
distributes copies of the images by transmitting the photographic image electronically to the
user's computer. As in Tasini, the user can then obtain copies by downloading the photo or
printing it. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. Cal. 2007).
In this case, myVidster.com’ users collects copyrighted videos and posts them to a page to be
shared, transmitted, discussed, commented on, and copied. myVidster.com encourages the
infringement.
The 9th Circuit explained in Perfect 10 that Google does display the work itself but merely
sends an address to the browser of the user:
Perfect 10 also argues that Google violates Perfect 10's right to display full-size images
because Google's in-line linking meets the Copyright Act's definition of "to perform or
display a work 'publicly.' " 17 U.S.C. ' 101. This phrase means "to transmit or otherwise
communicate a performance or display of the work 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." Id. Perfect 10 is mistaken. Google's activities do not meet this definition
because Google transmits or communicates only an address which directs a user's browser
to the location where a copy of the full-size image is displayed. Google does not
communicate a display of the work itself. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d
1146, 1161 (9th Cir. Cal. 2007)
In this case, myVidster.com not only finds the address, but displays the copyrighted image or
videos for the user. Google tells the user where he can steal the copyrighted video.
myVidster.com brings the stolen copyrighted video to the user.
The Ninth Circuit did not adopt or advocate a Aserver test@ but merely acknowledge that the
District Court in Perfect 10 used a Aserver test@. A search of Lexis Nexis for Aserver test@ produces
four cases that refer to it--three of the four cases relate to the Perfect 10 litigation: Perfect 10 v.
Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006); Louis Vuitton Malletier, S.A. v. Akanoc
26

Solutions, Inc., 2010 U.S. Dist. LEXIS 85266 (N.D. Cal. Mar. 19, 2010); Perfect 10, Inc. v. Google,
Inc., 2008 U.S. Dist. LEXIS 79200 (C.D. Cal. July 16, 2008); Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. Cal. 2007). Defendants cite no other cases that adopted the Aserver test@,
which is inadequate to deal with the changing technologies of today. Defendants’ proposed
“server test” would allow an infringer to circumvent the law which is written broadly. Nothing in
the Act discusses a Aserver test.@ The Act broadly states Aby means of other device or process.@
myVidster.com shows a copy of Flava Works, Inc.=s images and videos by means of other device or
process.
Defendants= reliance on In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. Ill. 2003), to
support its argument is flawed. Users of myVidster.com are like users of Aimster who directly
infringed on copyrights. The comparison should be between users of the websites, not between
myVidster.com and users of Aimster. The District Court correctly found that Plaintiff would
likely establish contributory copyright infringement by Defendants. myVidster.com like Aimster
provides a platform for users to share and trade copyrighted works, even though the files may not
reside on the Aimster’s servers. Aimster is directly on point. The 7th Circuit described the
Aimster platform as:
The Aimster system has the following essential components: proprietary software that can
be downloaded free of charge from Aimster's Web site; Aimster's server (a server is a
computer that provides services to other computers, in this case personal computers owned
or accessed by Aimster's users, over a network), which hosts the Web site and collects and
organizes information obtained from the users but does not make copies of the swapped
files themselves and that also provides the matching service described below; computerized
tutorials instructing users of the software on how to use it for swapping computer files; and
"Club Aimster," a related Internet service owned by Deep that users of Aimster's software
can join for a fee and use to download the "top 40" popular-music files more easily than by
using the basic, free service. In re Aimster Copyright Litig., 334 F.3d 643, 646 (7th Cir. Ill.
2003)
In Aimster, the 7th Circuit concluded that the copyright owners were likely to prevail on
27

their claim of contributory infringement. The provider's software that allowed for the sharing of
music files, along with a tutorial on how to share files, was an invitation to infringement. Further,
the fact that the service was capable noninfringing uses was not enough. The provider failed to
produce any evidence that its service had ever been used for a noninfringing use. The provider also
argued that it did not have actual knowledge of infringing uses because all of the files were
encrypted. The appellate court noted that by eliminating the encryption feature and monitoring the
use being made of its system, the provider could have limited the amount of infringement. Instead,
it did nothing to discourage repeat infringers. As such, the provider did not fall within the safe
harbor of 17 U.S.C.S. ' 512(i)(1)(A). Finally, the copyright owners' harm was irreparable and
outweighed any harm to the provider because their damages could not be reliably estimated and the
provider was unlikely ever to have the resources to pay them while the provider was protected by an
injunction bond. In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. Ill. 2003).
In this case, myVidster.com is the video pirating equivalent of swapping copyrighted music
files. myVidster.com provides a platform for users to swap and share full length copyrighted
videos by posting it to a page. The District Court noted that by adding filters and other
measures--which Mr. Gunter admitted is relatively easy--copyrighted videos can be prevented from
being posted but Defendants have refused to implement these measures. myVidster.com
encouraged users to infringe by posting instructions on a blog on how to access private videos and
gave copyrighted full length motion pictures as examples of videos to post on the Favorite Page of
Mr. Gunter. Defendants argue without merit that linking or posting somehow makes it less
copyright infringement than downloading in Aimster.
The myVidster.com Defendants admit that it provides an address for the location of a
copyrighted videos. Like Aimster, myVidster.com tells a user searching for a video where to go to
28

find a copyrighted video. If that copyrighted video is private or protected, myVidster.com
provides a plug-in for Fire Fox browser that bypasses the private encryption or hotlinking. Like
Aimster, myVidster.com provides a marketplace for infringers or pirates to meet and trade
copyrighted works. myVidster.com does this by tagging and indexing the videos and making the
tag words searchable.

A discussion forum or comment section is provided for users to post

comments seeking more copyrighted content.

A backup service is provided for users to make

backup files if the video is removed from the original source.

B.
UNCONTRADICTED EVIDENCE WAS PRESENTED BY BOTH PARTIES TO
THE DISTRICT COURT THAT THE MYVIDSTER.COM DEFENDANTS KNEW ITS
USERS WERE INFRINGING.
Defendants argue in bad faith that no evidence was presented of contributory infringement
by users of myVidster.com. The District Court found that AThere is uncontradicted evidence that
myVidster users have created backup copies of Flava's works, which are stored on myVidster's
servers@ and that A. . . defendants' own evidence demonstrates) that myVidster users have caused
Flava's works to be displayed on myVidster without Flava's permission@ (SA30).
Relying on the Seventh Circuit=s decision in In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th
Cir. 2003), the District Court correctly found held that there was Ano doubt that defendants knew or
should have known of the infringement occurring on myVidster@ (SA31). Over a period of several
months, Plaintiff sent Defendants at least seven DMCA notices that identified specific infringing
files and users as well as specific repeat infringers.
notices and responded to them (SA31).

29

Furthermore, Defendants received these

C.

MYVIDSTER.COM HAS NO REPEAT INFRINGER POLICY.
The District Court correctly found that myVidster.com=s "repeat infringer" policy is in fact

no policy at all:
Gunter's "repeat infringer" policy is in fact no policy at all, at least with respect to copyright
infringement.
In an e-mail to Bleicher on October 19, 2010 that is part of an exchange concerning repeat
infringement, Gunter stated:
Here is the policy that I use when addressing [repeat infringers]:
A user who uses myVidster to publish links/embeds of videos that would otherwise
not be accessible by the public. For example if a user is uploading videos to file
server and using myVidster as a way and means to distribute the content.
If a user is found in violation of this, the links/embeds will be removed and a
warning email is sent to the user. If the user repeats this violation then their account
will be deleted.
Being that most of the content are embeds which are hosted on external websites, I
would suggest contacting the websites that are hosting your content to help stop the
future bookmarking of it on myVidster. (Defs.' Hr'g Ex. 9.)
This perspective is the epitome of "willful blindness." Gunter is not concerned about
copyright infringement; he simply examines whether the material posted by the user is
"otherwise not [] accessible by the public," i.e., behind a paywall or otherwise private
website (SA33).
Interestingly, Defendants cannot even articulate what the repeat infringer policy is.
As the District Court correctly noted, A the crux of the problem here is not so much the
removal of the infringing videos; it is Gunter's attitude toward copyright protection and his
related refusal to adopt measures to prevent

or reduce copyright infringement on myVidster

as well as to adopt and implement an appropriate policy regarding repeat infringers@
(SA23). Defendants continue to rely on the meritless argument and troubling attitude toward
copyright infringement that Defendants willful blindness is a defense.
The District Court correctly found that Defendants do not qualify for the safe harbor
30

provision of the DMCA, because of Mr. Gunter=s views on copyright law:
It is difficult for us to understand how defendants can argue with a straight face that they
have adopted and reasonably implemented a "repeat infringer" policy. Gunter determines
the policies for, and controls, myVidster. His understanding of the term "infringer" does
not encompass the law of copyright; he operates his site under the mistaken view that an
"infringer" is limited to a person who posts content that is hosted on a password- protected
or private website. The statute does not define the term "repeat infringer," but it is an
obvious conclusion that "infringer" refers at the very least to someone who infringes
copyright (SA37).
myVidster.com has no repeat infringer policy because the repeat infringers post copyrighted
videos of Flava Works’ that attracts a following of users. This generates more traffic to the
myVidster.com.

Without the repeat infringers, myVidster.com would not have a following

because full length Flava Works’ copyrighted videos would not be available for free.

III.

THE DISTRICT COURT CAN PRESUME IRREPARABLE HARM.

The District Court correctly held that "Irreparable injury may
from a showing of copyright infringement."
Consumer Elecs. Corp., 672

F. 2d

Atari,
607,

620

normally be presumed

Inc. v. North Am.

Philips

(7th Cir.1982) (SA29).

Defendants cite to case law outside the 7th Circuit that are not binding on this Circuit. We are not
in the 9th Circuit.
Moreover, Mr. Bleicher testified that myVidster.com was conditioning people to believe
that everything is free on the Internet, including copyrighted videos.

In fact, counsel for

Defendants= incorrect statement in the Statement of Facts on page 5 of Defendants’ Appellate Brief
that Flava Works, Inc. has videos for free on the Internet supports this contention that Defendants
and even its attorneys seem to view everything on the Internet as free.

Mr. Bleicher testified that

there were free trailers or teasers of Flava Works’ videos. The trailers redirect the user to a paid
membership where the user must pay for the full length movie. In contrast to sites like
31

Youtube.com, myVidster.com allows users to post full length movies. Defendants have provided
no evidence that everything is free on the Internet. Defendants and its attorneys just simply
assume that nearly everything publicly accessible on the Internet is free. Only Mr. Bleicher has
testified to industry standards and practices by websites like Youtube.com. This conditioning is
not redressable by money damages. This mistaken view of copyright law can potentially put Flava
Works out of business. It discourages free enterprise and creative individuals from investing or
engaging in any endeavor, only to have it stolen and given away for free on the Internet.
Mr. Gunter=s myVidster.com platform and his refusal to implement filters that
YouTube.com and other sites have reasonably adopted seems to be a personal crusade to advocate
his view that anything that is publicly available is not copyrighted. In fact, this litigation seems to
be an effort to change the status quo and the law of copyright by asking the 7th Circuit to adopt the
unreasonable view that making a display of a copyrighted work is not an infringement simply
because of an overly a technical argument that the video was embedded or posted. Aimster did not
split hairs as to whether a file resided on a server of the Aimster site.
In addition, Mr. Bleicher testified that the sudden growth in traffic on myVidster.com
correlated with the significant loss of his business=s revenue. The District Court noted that Flava
Works' sales are down thirty percent from last year, which equates to an estimated loss of between
$100,000 and $200,000, while the number of myVidster.com users has grown to over 70,000 since
the site was created a few years ago. In addition, myVidster.com grew from 67,000 visits per
month from October 2009 to about 460,000 visits in April 2010.

Mr. Gunter did not dispute this

exponential growth. Mr. Bleicher attributes at least some of Flava's lost sales to myVidster.com
because hundreds of Flava Works’ videos have appeared (and still appear) on myVidster (SA24).
Irreparable injury may normally be presumed from a showing of copyright infringement.
32

Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 620 (7th
Cir. Ill. 1982).

Graham v. Medical Mut., 130 F.3d 293 (7th Cir. Ill. 1997), and E. St. Louis

Laborers' Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700 (7th Cir. Ill. 2005) are not
copyright cases where damages are presumed when there is an infringement.
In Aimster, the 7th Circuit held the recording industry's harm should the preliminary
injunction be dissolved would undoubtedly be irreparable. The industry's damages from Aimster's
contributory infringement could not be reliably estimated and Aimster would in any event be
unlikely ever to have the resources to pay them.

In re Aimster Copyright Litig., 334 F.3d 643,

655-656 (7th Cir. Ill. 2003). In this case, Defendants argue that Plaintiff=s damages cannot be
reasonably estimated and that Defendants generated little revenue from the site. Thus, Defendants
have made Plaintiff=s arguments.

IV.

THE DISTRICT COURT=S ORDER WAS APPROPRIATE.
The 7th Circuit held in Aimster that AAimster objects to the injunction's breadth. But having

failed to suggest alternative language either in the district court or in this court, it has waived the
objection.@ In re Aimster Copyright Litig., 334 F.3d 643, 656 (7th Cir. Ill. 2003).

For the same

reasons, myVidster.com, having failed to suggest alternative language and having taken a hard and
obstinate stance on its distorted view of copyright law, has waived the objection.
The language in the injunction in Aimster was much broader than the injunction entered by
the District Court in this case ordering myVidster.com to, among other things, filter out Flava
Works= trademark names, implement a repeat infringer policy, and comply with the DMCA
(SA52). In re Aimster Copyright Litig., 2002 U.S. Dist. LEXIS 21453, 1-4 (N.D. Ill. Oct. 30,
2002). In this case, the District Court attempted to find a just, reasonable and fair remedy to reduce
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the blatant copyright infringement on myVidster.com--short of shutting down the entire website.
The myVidster.com Defendants do not define the Astatus quo@ but seem to argue that the
Astatus quo@ is the period of time during which myVidster.com was allowed to infringe on Flava
Works’ copyrights.

On the contrary, the Astatus quo@ is during the period of time when Flava

Works’ copyrights were not being infringed.

Defendants created a platform that invited users to

troll the Internet posting and infringing Flava Works’ works. Short of shutting down the website,
the District Court provided a reasonable steps that myVidster.com can take to limit the
infringement, to preserve the Astatus quo@ when the infringement had not taken place. Defendants
seem to argue that the order prevents Defendants’ users from infringing on Flava Works’
copyrighted works. That’s the point of the preliminary injunction.
Mr. Gunter testified that he has software that filters out adult and non-adult content and that
filtering out Flava Works, Inc.=s trademarks would be relatively easy. The District Court--who
heard the testimony of the parties and assessed their credibility--found that there was
uncontroverted evidence that Defendants knew or should have known of rampant copyright
infringement. Defendants argue that complying with the District Court=s order Awould cause
myVidster to terminate a substantial number of users, who would likely never return . . .@
Defendants miss the point: a substantial number of users are engaging in copyright infringement.
These repeat infringers create web traffic from other users seeking full length copyrighted Flava
Works’ videos. The mass number of copyright infringements taking place on the myVidster.com
platform is all the more reason why their accounts should be disabled. Should Defendants prevail
on the merits, nothing would stop them from attracting the same users who were probably drawn to
the site in the first place to view, shared, and download copyrighted films for free.

There is

always a market for free pirated or copyrighted films or videos and images. Defendants argued
34

that myVidster.com generated little or no revenue from the website.

Defendants cannot show that

it would face difficulties rolling back to the situation at the present in which Defendants provide a
platform for copyright infringement and free videos for downloading if Defendants prevail at trial.
The preliminary injunction order is more specific than the language in Aimster directing
Defendants to filter out Flava Works, Inc.=s trade names. myVidster.com is fairly apprised of the
prohibited or required conduct, because it just argued that complying with the order would prevent
its users from posting or downloading copyrighted videos.
The language to adopt and reasonably implement a repeat infringer policy with respect to
the infringement of copyright and to implement measures designed to prevent repeat infringement
is reasonable and specific. Defendants are being ordered to comply with the copyright law and the
DMCA.

Defendants can decide for themselves that a user who posts more than two or three or

four copyrighted videos is a repeat infringer. Defendants do not define its repeat infringer policy,
because it has none. As the District Court observed, myVidster.com has no repeat infringer policy,
because its obstinate views on copyright law is distorted and plain wrong.
Finally, there is no restrain on free speech.

Defendants do not even identify the speech

that is being restrained. The District Court did not enter an order restraining Defendants from
making disparaging comments on the Internet. The order states nothing with respect to the
comments or discussion section on the pages where the videos are posted. The Court simply
ordered myVidster.com to comply with the copyright laws and not infringe on copyrights.
As the District Court aptly noted, how often does AFlava Works@ or ARaw Rods@ or ACoco Dorm@
come up in a conversation (Doc 78, PageID 1549). The District Court is not ordering that users
cannot post these words. The Court is ordering that Defendants implement filters so that
Defendants cannot tag and index these words to become a repository of copyrighted videos for
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users to search and download. Defendants would argue that the First Amendment bars the filtering
of tag words like Achild porn@ or Arape@.

That is not the case. Defendants cannot even

demonstrate how many false positives would occur for the word AFlava@ or that AFlava@ is somehow
used in common speech. This argument is meritless.
The cases cited by Defendants are not applicable, because they involve screening comments
or postings by users, not filtering tags or key words in a search index.

Wolk v. Kodak Imaging

Network, Inc., cited by Defendants, do not apply. There, there was Ano evidence that Photobucket
had actual or constructive knowledge of the copyright infringement Wolk alleges@. Summary
judgment was granted in favor of the defendants against the pro se plaintiff. Wolk v. Kodak
Imaging Network, Inc., 2011 U.S. Dist. LEXIS 150114 (S.D.N.Y. Dec. 21, 2011). The issue of the
appropriate language in an injunction order or the issue of a preliminary injunction did not even
come up.
CONCLUSION
For the foregoing reasons, the District Court=s opinions of July 27, 2011 and September 1,
2011 should be affirmed and the Preliminary Injunction be affirmed.

Respectfully submitted,
Date: March 28, 2012

/s/ Meanith Huon
Attorneys for Plaintiff-Appellee, Flava Works, Inc.

Meanith Huon
The Huon Law Firm
PO Box 441
Chicago, IL 60690
312-405-2789
E-mail: [e-mail]
IL ARDC. No.: 6230996
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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because
this brief contains approximately 10,735 words, excluding the parts of the brief exempted by Fed.
R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Circuit Rule 32(b) and the type style
requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally
spaced typeface using Microsoft Office Word 2007 in Times New Roman 12 point font in the body
of the brief and 12 point font in the footnotes.

Dated: March 28, 2012

/s/ Meanith Huon
Meanith Huon

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CERTIFICATE OF SERVICE
I hereby certify that on March 28, 2012, 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.
I hereby certify that on March 28, 2012, I serve 2 copies on all on counsel for each
separately represented party pursuant to Fed. R. App. P. 31, by regular mail, postage prepaid, by
depositing same in a U.S. Post Office Box located in Chicago, Illinois.
Dated: March 28, 2012

/s/Meanith Huon
Meanith Huon

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