Piracy Journal: Looking at Leachers

Peter Phinney

There is a copyright infringement case in Chicago that began two years ago, and it’s still before the court, and everyone interested in digital piracy should be watching it closely. It involves a content producer from Florida called Flavaworks, and a social media and video indexing site called MyVidster.com. Flavaworks sued MyVidster for copyright infringement because users of MyVidster had been posting links to videos produced by flavaworks without their permission.

The case is interesting because of the way MyVidster operates, which is different than some other tube sites. MyVidster is an “indexing” tube (sometimes called a leeching tube,) which means they can display video without actually hosting a copy of the file on their servers. I’m not an expert in the technology, but the basic concept is that a user of MyVidster can post a link to a video on another tube site, and MyVidster displays a screenshot from the video as well as the title provided by the user, the length, etc. When a visitor selects that video, it plays on the original tube site but it’s shown through a customized MyVidster player, which acts as a frame and keeps the viewer on the MyVidster site rather than sending him directly to the tube that hosts the content.

So if MyVidster holds the back door to the theater open, and they also collect advertising revenue based on the type of video files they index, why is that not akin to collecting a fee from the people they allow into the theater without tickets?

The case has become extremely complicated in the many months its been working its way to trial. And some very heavy hitters in the tech world have piled onto the case, including the Electronic Frontier Foundation, Google, Facebook, the Motion Picture Association of America, and Public Knowledge Public-Knowledge.org.

The idea of “indexing” versus hosting, and the complexities of defining contributory infringement make this case especially interesting. The machinations are complicated, but the short story is that a federal appeals court judge overruled the district court’s decision requiring MyVidster to comply with takedown notices, saying MyVidster did not infringe copyrights simply by facilitating viewing of infringing videos that are hosted elsewhere.

In his complex and sometimes rambling decision, Judge Richard Posner of the 7th U.S. Circuit Court of Appeals said something very interesting to those of us who are always looking for analogies to piracy in an effort to explain this kind of theft in terms that anyone can understand. The judge likened the actions of MyVidster to holding open the back door of a theater and allowing someone to enter to see the movie for free. It’s not the same as stealing tickets. It’s not, he said, copyright infringement, either direct or contributory.

His argument involves MyVidster’s intent. If there is no intent to induce members to post infringing videos (they are not paid for what they post,) and if the infringing content is not being stored or even handled at all by MyVidster, then Judge Posner said there is no infringement, he overturned the initial injunction, and MyVidster has been allowed to continue its operation and they need not comply with DMCA notices. For now.

What fascinates me about the case is the idea that a service can facilitate access to infringing material and bare no responsibility for contributing to piracy. It’s true that MyVidster doesn’t force users to link to infringing content. It doesn’t force people to go into the theater through the door it holds open, and it doesn’t make any money from their attendance at the movie —or does it?

MyVidster claims that its revenue, which it says it receives solely from advertising, is not affected by the quantity of infringing content available through the site. Its advertising revenue are based on the number of people visiting the site, of course. Advertising is all about traffic counts. And according to Alexa, MyVidster does big business in traffic, with a rank in the U.S. of about 2,300, and a global rank of about 6,500.

The MyVidster site is divided into two main areas – a family-friendly area, and an adultsonly area. Not surprisingly, the advertising in each area is very different – jewelry, credit score sites and real estate agents in the family area, and porn sites and “boner pills” in the adults-only area. And the distinction within the adults-only area gets even more granular if you look carefully. If you search for a well-known straight brand for example, all of the advertising you see is for straight porn. If you search for a well-known gay brand, all of the advertising you see is for gay porn. It’s easy to imagine that the type of advertising is assigned based on tags that are attached to every video, but often there are no tags attached at all by the member who posted the link.

MyVidster claims that it does no filtering and does not screen videos in any way. This is typical for sites that rely on user-generated content. In fact, their safe harbor from prosecution depends on them not being able to control the content contributed by members. So presumably, it is the member who specifies the type of video he is contributing. It seems somewhat disingenuous for MyVidster to claim that its advertising revenues would not be affected by whether or not it made infringing content available, when it’s quite clear that the type of advertising displayed is governed by the type of video offered at various locations on the site.

So if MyVidster holds the back door to the theater open, and they also collect advertising revenue based on the type of video files they index, why is that not akin to collecting a fee from the people they allow into the theater without tickets?

Suppose I built myself a weekend retreat by a pristine lake in the mountains, but within a reasonable drive of the city. I used the place once or twice a month — to get away from the pressures of my life in town, nice, peaceful, isolated. Suppose I leave the key under the mat or in a flowerpot by the back door.

Now what if someone decides they’re going to collect money from people who want to rent my place? They set up a website with some nice pictures of the cabin and they advertize anyone can rent this peaceful, isolated place for $300 a week. Send in your money and we’ll give you a map and tell you where to find the key. The people aren’t actually stealing my cabin. But they aren’t just using it while I’m not there either.

Whether you prefer the theater door analogy or the rental cabin analogy, it seems clear that the activity of using something that belongs to someone else to make money without involving or compensating the owner in any way is wrong. The court will decide whether it’s against the law or not. But I don’t think it requires a trained legal mind to see that making stolen property available to others and profiting from it, however indirectly, is not a sustainable business model for the Internet.

Remember that the software behind MyVidster keeps visitors at that site while they watch a video playing elsewhere. It keeps them there because that drives up traffic counts and the length of stay, which drives advertising revenue. To claim the site is a service that allows members to share links to their favorite videos is only part of the story.

Peter Phinney runs Porn Guardian with business partner Dominic Ford. The company offers a full suite of anti-piracy services to the adult industry and currently represents more than 370 individual brands across all content niches.