## Facts

- Flava Works, Inc. produced and distributed adult videos offered on DVDs and subscription streaming sites subject to a paywall and license limits on copying and redistribution.
- Some subscribers copied Flava’s videos and uploaded them to third-party hosting or storage sites outside Flava’s control.
- Marques Rondale Gunter operated myVidster.com, a “social bookmarking” site where users submitted URLs to videos hosted on third-party servers.
- myVidster did not store Flava’s videos; it displayed embedded frames so users could watch streams delivered from third-party hosts directly to viewers’ computers.
- myVidster sold advertising associated with pages that displayed the embedded videos.
- Flava sent DMCA takedown notices identifying specific infringing items and repeat infringers; myVidster removed specifically identified content but allegedly did not stop repeat offenders from posting new infringing links.
- Flava sued for, among other claims, direct and secondary (contributory and vicarious) copyright infringement.
- The district court granted a preliminary injunction, reasoning that myVidster likely contributed to infringement by enabling users to view Flava’s videos for free.

## Issues

1. Whether embedding and displaying third-party-hosted infringing videos via social-bookmarking pages created a sufficient likelihood of contributory copyright infringement—particularly based on the public-performance right—to support a preliminary injunction.
2. Whether the district court correctly applied preliminary-injunction standards, including balancing irreparable harm, hardships, and the public interest.

## Decision

- The Seventh Circuit vacated the preliminary injunction and remanded.
- The court held Flava had not shown a sufficient likelihood of success on contributory infringement at the preliminary-injunction stage.
- myVidster neither made nor stored copies of Flava’s works, and the record did not show myVidster materially increased infringement beyond what already existed on third-party hosts.
- The court criticized the district court for treating likelihood of success as effectively dispositive and for failing to conduct the required balancing of harms and public-interest considerations.
- The court did not resolve the DMCA safe-harbor question, reasoning that even without safe-harbor protection Flava still had to show a strong contributory-infringement case for preliminary relief.

## Legal Principles

- Contributory copyright infringement generally requires knowledge of direct infringement plus inducement or a material contribution that causes or materially increases the infringement.
- A service that does not host or transmit the infringing file may be less likely to be treated as directly infringing, and secondary liability depends on a showing of meaningful causal contribution, not mere facilitation of discovery.
- In the embedding/framing context, where the third-party host transmits the stream to the viewer and controls the file, the embedding site may not itself “perform” the work for purposes of the public-performance right.
- A preliminary injunction requires more than a strong merits prediction; courts must consider irreparable harm, apply a sliding-scale balancing of hardships, and account for the public interest, including risks from shutting down services with lawful uses.

## Conclusion

The Seventh Circuit vacated the preliminary injunction because the evidentiary record did not show that a social-bookmarking site that embeds third-party-hosted videos likely committed contributory infringement, and because the district court failed to apply the required equitable balancing for preliminary relief.


Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012)