“Linking to a copyrighted work is authorizing someone to use that work, i.e., contributing to that use. If the authorization is itself not authorized, it’s contributory infringement.”

Except that’s not true. If it was, then Google and Bing would be in plenty of trouble, as would the Internet Archive.

In reality, linking to a copyrighted work is telling others where to find that copyrighted work. If it can be shown in court that this was done while knowing that the work was not authorized by the copyright holder(s), then there’s contributory; otherwise it isn’t.

Since none of this stuff involves the courts and there has been no establishment of who the rights holders are, whether they’ve authorized this specific instance of the work, whether fair use applies, or anything else… it’s not contributory infringement.

This is the equivalent of someone tweeting a photo of an open beer, when that someone is known in certain circles to bootleg beer for minors. Sure, it’s likely that the photo is their way of letting their underage followers know that it’s time to come and buy their booze, but that doesn’t mean they’re actually doing it. This doesn’t hold up in meatspace, and adding “on a computer” shouldn’t suddenly make it OK.

Simple!

It’s not simple. You may be simple-minded, but it’s not simple.

Linking may authorize someone to use a work, but mere ‘use’ is not an exclusive right of copyright. You need something more specific. Further, linking may not authorize someone to use a work, and anyway, authorizing by itself is not sufficient grounds for contributory infringement.

Here’s an excerpt from Flava Works v. Gunter, 689 F.3d 754 (7th Cir. 2012). I apologize to the others — not you — for the length, but I don’t think it can be trimmed down much further. The really key bits I have emboldened for emphasis.

Flava specializes in the production and distribution of videos of black men engaged in homosexual acts.

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The websites that host them are behind a “pay wall”; that is, access to them (except for previews) is available only upon payment of a fee in advance. The user must agree not to copy, transmit, sell, etc. the video, although Flava’s terms of use permit the user to download it to his computer for his “personal, noncommercial use” — only.

Enter myVidster, an online service engaged in what is called “social bookmarking” — enabling individuals who have similar tastes to point one another (and actually provide one another access) to online materials that cater to those tastes, by bookmarking materials on the social-bookmarking service’s website.

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[The court then describes how myVidster works, which is essentially that users enter in URLs of videos, and the myVidster website then displays those videos within a frame; the videos themselves are not ordinarily copied by myVidster.]

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[I]f the uploaded video is copyrighted, the uploader has (depending on the terms of use) infringed the copyright. A customer of Flava is authorized only to download the video (or if he obtained it on a DVD sold by Flava, to copy it to his computer) for his personal use. If instead he uploaded it to the Internet and so by doing so created a copy (because the downloaded video remains in his computer), he was infringing.

Is myVidster therefore a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video? myVidster is not just adding a frame around the video screen that the visitor is watching. Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster’s visitor. But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies … of the copyrighted work to the public.” 17 U.S.C. § 106(1), (3). His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.

The right to control copying is not the only exclusive right of a copyright owner. That would make life too simple for us. He also has an exclusive right “to perform the copyrighted work publicly.” § 106(4). But we begin our analysis with the right to prevent copying and ask whether myVidster is the copiers’ accomplice.

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A typical, and typically unhelpful, definition of “contributory infringer” is “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971).

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We … prefer the succinct definition of contributory infringement in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir.1998): “personal conduct that encourages or assists the infringement.” See also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir.2007).

Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement. See Perfect 10, Inc. v. Visa Int’l Service Ass’n, 494 F.3d 788, 797 (9th Cir.2007). An employee of Flava who embezzled corporate funds would be doing the same thing — reducing Flava’s income — but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.

A practical objection to stretching the concept of contributory infringement far enough to make a social-bookmarking service a policeman of copyright law is that the service usually won’t know whether a video that a visitor bookmarks on the service’s website is protected by copyright. Congress addressed this problem in the Digital Millennium Copyright Act of 1998, Pub.L. 105-304, 112 Stat. 2860. The [Digital Millennium Copyright] Act provides a safe harbor to Internet service providers. It states that a provider isn’t liable for copyright infringement by “referring or linking users to an online location containing infringing material” if it meets certain conditions — it doesn’t know the material is infringing, it isn’t aware of facts that would make the infringement apparent, upon learning such facts it acts expeditiously to remove or disable access to the infringing material, it doesn’t receive a financial benefit directly attributable to the infringing activity, 17 U.S.C. § 512(d), and it terminates repeat infringers. § 512(i)(1)(A). myVidster received “takedown” notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor. As the record stands (a vital qualification, given that the appeal is from the grant of a preliminary injunction and may therefore be incomplete), myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer.

It might seem that the mention in the Digital Millennium Copyright Act of “referring or linking users to an online location containing infringing material” expands the concept of contributory infringement to any reference to, or linkage in the sense of facilitating access to, copyrighted material. But this is implausible, and anyway is not argued by Flava. Taken literally it would make the publication, online or otherwise, of any contact information concerning a copyrighted work a form of contributory infringement. A more plausible interpretation is that Congress wanted to make the safe harbor as capacious as possible — however broadly contributory infringement might be understood, the Internet service provider would be able to avoid liability.

Now if myVidster invited people to post copyrighted videos on the Internet without authorization or to bookmark them on its website, it would be liable for inducing infringement, Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., supra, 545 U.S. at 930, 936, 125 S.Ct. 2764 — a form of contributory infringement, see Perfect 10, Inc. v. Amazon.com, Inc., supra, 508 F.3d 759*759 at 1170-71, that emphasizes intent over consequence. But … there is no proof that myVidster has issued any such invitations.

myVidster knows that some of the videos bookmarked on its site infringe copyright, but that doesn’t make it a facilitator of copying. Although visitors who view those videos are viewing infringing material, they are paying nothing for it and therefore not encouraging infringement, at least in a material sense, unless perhaps the infringer gets ad revenue every time someone plays the video that he posted on the Internet — but there is no evidence of that. True, bookmarking is a way of making friends on a social network, and one needs something to bookmark, and so if you want to make friends with people who like the kind of videos that Flava produces you may be inclined to upload those videos to the Internet in the hope that someone will bookmark them on myVidster’s website and someone else will watch them and be grateful to you. But this is very indirect. For will a visitor to myVidster who watches a bookmarked infringing video know whom to be grateful to — know who uploaded it, thus enabling it to be bookmarked and viewed? That is unlikely. The unauthorized copier — the uploader of the copyrighted video — is not a part of the social network unless he’s a myVidster member and uploads the Flava video for the purpose of its being bookmarked on myVidster and somehow gets credit for the bookmarking and for the ensuing viewing of the bookmarked video. There is no evidence that there are any such people.

A term in the conventional definition of contributory infringement — “material contribution “— invokes common law notions of remoteness that limit efforts to impose liability for speculative imaginings of possible causal consequences. As we said in BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750, 755 (7th Cir.2011), “An injury will sometimes have a cascading effect that no potential injurer could calculate in deciding how carefully to act. The effect is clear in hindsight — but only in hindsight.” The absence of evidence of myVidster’s effect on the amount of infringement of Flava’s videos brings concern about remoteness into play.

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So far we’ve been discussing infringement just by copying, and we can’t stop there. For remember that the Copyright Act also makes it unlawful “to perform the copyrighted work publicly,” 17 U.S.C. § 106(4), defined, so far as relates to this case, as “to transmit or otherwise communicate a performance … of the work … to the public … whether the members of the public capable of receiving the performance… receive it in the same place or in separate places and at the same time or at different times.” § 101. One possible interpretation is that uploading plus bookmarking a video is a public performance because it enables a visitor to the website to receive (watch) the performance at will, and the fact that he will be watching it at a different time or in a different place from the other viewers does not affect its “publicness,” as the statute makes clear. We’ll call this interpretation, for simplicity, “performance by uploading.” An alternative interpretation, however — call it “performance by receiving” — is that the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer — in other words when it is “communicated to the public in a form in which the public can visually or aurally comprehend the work.” William F. Patry, Patry on Copyright § 14:21, p. 14-41 (2012).

On the first interpretation, performance by uploading, the performance of a movie in a movie theater might by analogy be said to begin not when the audience is seated and the movie begins but a bit earlier, when the operator of the projector loads the film and puts his finger on the start button; while on the second interpretation, performance by receiving, it begins when he presses the button and the reel begins to unwind. The second interpretation is certainly more plausible in the movie-theater setting. But in the setting of our case the viewer rather than the sender (the latter being the uploader of the copyrighted video) determines when the performance begins, and it is odd to think that every transmission of an uploaded video is a public performance. The first interpretation — public performance occurs when the video is uploaded and the public becomes capable of viewing it — is better at giving meaning to “public” in public performance but worse at giving meaning to “performance.” Legislative clarification of the public-performance provision of the Copyright Act would therefore be most welcome.

The second interpretation — the performance occurs when the video is viewed — is more favorable to Flava, because myVidster plays a role there and not in uploading. So we’re surprised that Flava doesn’t urge it. The first interpretation is hopeless for Flava. For there is no evidence that myVidster is contributing to the decision of someone to upload a Flava video to the Internet, where it then becomes available to be book-marked on myVidster’s website. myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not “transmitting or communicating” them. Cf. Perfect 10, Inc. v. Amazon.com, Inc., supra, 508 F.3d at 1159-61; In re Aimster Copyright Litigation, supra, 334 F.3d at 646-47.

Is myVidster doing anything different? To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and contributory infringement and by doing so make the provider of such information an infringer even if he didn’t know that the work to which he was directing a visitor to his website was copyrighted. Then he would have to search for a safe harbor in the Digital Millennium Copyright Act. myVidster doesn’t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster. Compare National Football League v. PrimeTime 24 Joint Venture, 211 F.3d 10, 13 (2d Cir.2000), a retransmission case.

But if the public performance is the transmission of the video when the visitor to myVidster’s website clicks on the video’s thumbnail (the second interpretation) and viewing begins, there is an argument that even though the video uploader is responsible for the transmitting and not myVidster, myVidster is assisting the transmission by providing the link between the uploader and the viewer, and is thus facilitating public performance. There is a remote analogy to the “swap meet” operated by the defendant in Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir.1996). That was a flea market in which, as the defendant knew, pirated recordings of music copyrighted by the plaintiff were sold in such bulk that the subsequent performance by the buyers (when they played the recordings) may have satisfied the broad definition of public performance in the Copyright Act, although the opinion doesn’t say whether the infringement consisted of unauthorized distribution of copies or unauthorized public performance and probably meant the former. Under either interpretation the swap meet operator was providing “support services” without which “it would [have been] difficult for the infringing activity to take place in the massive quantities alleged.” Id. at 264.

In contrast, Flava’s pirated videos are not sold, and there isn’t even admissible evidence that they’re actually being accessed via myVidster, rather than via other websites, and if they are not, myVidster is not contributing to their performance. Unlike the defendant in Fonovisa, myVidster is not providing a market for pirated works, because infringers who transmit copyrighted works to myVidster’s visitors are not selling them. That isn’t determinative, because copyrights can be infringed without a pecuniary motive. But it is relevant to whether myVidster’s bookmarking service is actually contributing significantly to the unauthorized performance of Flava’s copyrighted works by visitors to myVidster’s website. It’s not as if myVidster were pushing the uploading of Flava videos because it had a financial incentive to encourage performance of those works, as the swap meet did.

Nor is this case like our Aimster case, cited earlier. That was a file-sharing case. Kids wanted to swap recorded music (often copyrighted) over the Internet. The swapping required special software — which Aimster provided. By doing so it created the online equivalent of a swap meet, since anyone equipped with Aimster’s software could easily obtain copies of copyrighted songs in AOL chat rooms; the first three letters in “Aimster” were an acronym for “AOL instant messaging.” Although it wasn’t proved that all the swapped recordings were copyrighted, it was apparent that most were — and maybe all, for we noted that “Aimster has failed to produce any evidence that its service has ever been used for a noninfringing use.” In re Aimster Copyright Litigation, supra, 334 F.3d at 653 (emphasis added). That can’t be said about myVidster’s social-bookmarking service. Unlike Aimster, it’s not encouraging swapping, which in turn encourages infringement, since without infringement there is nothing to swap.

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Flava may be entitled to additional preliminary injunctive relief as well, if it can show, as it has not shown yet, that myVidster’s service really does contribute significantly to infringement of Flava’s copyrights.

Ultimately, the Seventh Circuit vacated the injunction against myVidster because Flava had not shown that it had contributed to infringement.