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Last week, the MPAA responded and called myVidster “an unlicensed on-demand, internet-video service that generated advertising and other revenues by attracting an audience for infringing content.”
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In sum, Google and Facebook said that the judge’s injunction against MyVidster meant the social bookmarking got the same treatment as direct infringers, a decision that “ has imperiled the investment decisions and licensing arrangements” by its companies. That’s why when a consumer goes to Google Images, he or she can see thumbnails of copyrighted pictures. In those disputes, it was held that because Google and Amazon held no copies of images from the adult publisher Perfect 10 on its own servers, they couldn’t be held liability for merely linking to images. Just as importantly, the case presented an opportunity to address the so-called “server test” offered by the 9th Circuit in the Perfect 10 cases. With respect to ’embedded’ videos, myVidster does not transmit or otherwise communicate the copyrighted video a third-party site does.” “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. The companies explained the technology behind embeds - also known as “inline links” - and wanted the 7th Circuit to find that under the Copyright Act, it was the server transmitting the video rather than the server merely linking to that video that was involved in “performance.”
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Specifically, the two companies asserted that clear rules are needed to make a distinction between direct and secondary liability. Google and Facebook were just as concerned by the judge’s decision, telling the appellate circuit in a brief filed in November that the “continued development and progress of web technology” was at stake. The groups went onto to say that copyright law “does not say when and how service providers must terminate the accounts of ‘repeat infringers,’ nor does it define ‘repeat infringer.'” “Courts have emphasized that §512(i) does not create any duty on the part of service providers to police their sites or otherwise make determinations on claims of copyright infringement,” wrote EFF and Public Knowledge in an amicus brief. The decision was appealed up to the 7th Circuit, where it quickly got support by public interest groups and big tech companies. PHOTOS: 18 Outrageous Entertainment Lawsuits It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement - with respect to content and repeat infringers.” “Beyond his mechanical response to the notices, Gunter refuses to concern himself with copyright protection. MyVidster had responded to written takedown notices, “but goes no further,” wrote the judge. The plaintiff alleged that its copyrighted works had been infringed, and in a ruling last July that granted a preliminary injunction, Illinois federal judge John Grady ruled that MyVidster and its operator, Marques Rondale Gunter, couldn’t avail themselves of safe harbors under the Digital Millennium Copyright Act because the site hadn’t acted beyond minimum requirements.