CHICAGO — A federal judge has ordered a preliminary injunction against MyVidster.com, a "social video bookmarking and backup service" that has been accused of streaming Flava Works' gay content.
Flava Works CEO Phillip Bleicher told XBIZ that Thursday's ruling is "even more bad news for pirates."
MyVidster, operated by Marques Rondale Gunter, is a user-generated tube site that had been fingered by Flava Works, which focuses on black and Latino talent, for streaming several of its copyrighted movies.
The suit named Gunter, as well as hosting service Voxel and 26 John Doe users of the site, to the suit. (Voxel, which recently dumped MyVidster as a client, has been pared from the injunction.)
Thursday's ruling sets in motion rules to "adopt and reasonably implement a repeat-infringer policy," where MyVidster will be forced to create a filtering system and compile a series of compliance reports. The decision also sets up claims for damages relative to copyright infringement.
MyVidster had contended in court that it had complied with Flava Work's takedown notices pursuant to § 512 of the Digital Millennium Copyright Act; however U.S. Judge John Grady disagreed and that MyVidster didn't satisfy any of the threshold requirements.
"The email exchanges between Flava Works 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," Grady said in his ruling.
The federal judge went on to say that for Flava Works it was "sometimes like pulling teeth to obtain full compliance from Gunter."
"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."
Grady noted that Bleicher, in testimony at federal court, said that there was so much of his company's content on MyVidster that he can point to lost sales due to the alleged infringement.
Grady also said that while Flava Works has seen lower revenue, MyVidster has seen more visitors, and perhaps more advertising revenue.
"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," Grady said.
"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."
Grady ordered Flava Works to come up with a proposed preliminary injunction order in accordance with his opinion by Aug. 5
