Internet Linking May Be Copyright Infringement – Flava Works, Inc. v.

Earlier this year, online communities banded together to help shut down the Stop Online Privacy Act (SOPA), which sought to increase the government’s ability to fight online sharing of copyrighted intellectual property. Internet companies like Google, Wikipedia, and Craigslist opposed the bill on the basis that it could hold them responsible for any illegal sharing by its users. The Seventh Circuit Court of Appeals is set to consider a copyright infringement lawsuit that could have similar repercussions for internet companies, Flava Works, Inc. v. Marques R. Gunter d/b/a, No. 11-3190.

The plaintiff company, Flava Works, Inc., produces adult videos and claims that the defendant company has violated copyright laws by allowing its online users to upload and share material copyrighted by Flava Works. holds itself out to be a “social media bookmarking and backup service that lets you collect, share and search your videos.”
The basis of Flava Works’s claims was that’s business model was “largely dedicated to the repeated and exploitative unauthorized distribution and reproduction” of media, including videos owned by Flava Works. By providing users with a means of uploading, storing, and sharing copyrighted material that had caused the plaintiff “irreparable harm.” Flava Works chief executive officer stated that by allowing users to post and share its videos with friends, “[] is sharing content that is copyrighted by Flava Works and promoting it.”
The case was filed in the U.S. District Court for the Northern District of Illinois, where Judge John F. Grady ruled that Flava Works’ claim for copyright warranted a preliminary injunction. It is this ruling that is being reviewed the the Seventh Circuit Court of Appeals. If the circuit court agrees with Judge Grady’s ruling, it could drastically change the rules for online sharing.

Judge Grady’s ruling is contrary to a decision made by the U.S. Ninth Circuit Court of Appeals on a similar copyright infringement issue. In Perfect 10, Inc. v., Inc., 508 F.3d 1146 (2007), the court ruled that “users that create links to third-party materials cannot be direct infringers as a matter of law.” Rather, only the direct host of the unauthorized content can be held responsible under strict liability, not a party who simply provides a link to the unauthorized content. Following the ruling set out in Perfect 10, it would seem that Flava Works does not have a case against, who claim they are merely providing a link to its users’ unauthorized content.

Because the ruling in Flava Works could have wide-reaching effects on online hosting and sharing websites, many of these companies have filed friend of the court briefs with the Seventh Circuit. Notable among these companies is Google, Facebook, and the Motion Pictures Association of America (MPAA). While the amicus briefs filed by Google and Facebook argue against Judge Grady’s ruling, the MPAA’s amicus brief supports his decision. If Grady’s ruling stands, Google and Facebook could be held liable for its users’ copyright infringement violations, while the MPAA’s copyrights would be better protected. is being represented, pro bono by the law firm Neal, Gerber & Eisenberg. When speaking on the case, one of its partners spoke to the importance of the case’s outcome, noting that “the Seventh Circuit’s input on this case will clarify what could potentially have wide-reaching impact for search engines, social media sites and other websites that link to material hosted elsewhere; not to mention the millions of individual Internet users who create links to content on the Internet every day.”

Kreisman Law Offices has been handling business and corporate litigation matters for more than 36 years in and around Chicago, Cook County and its surrounding areas, including Bedford Park, Blue Island, Alsip, Chicago’s Canaryville, Elmhurst, Bensenville and Northlake.

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