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Flava Works v Gunta MTD Ruling

Flava Works v Gunta MTD Ruling

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Published by Eric Goldman

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Published by: Eric Goldman on May 12, 2011
Copyright:Attribution Non-commercial


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10-6517.111-JCD May 10, 2011
FLAVA WORKS, INC., ))Plaintiff,))v.) No. 10 C 6517)MARQUES RONDALE GUNTER d/b/a )myVidster.com; SALSAINDY, LLC; )VOXEL DOT NET, INC., and)JOHN DOES 1-26,))Defendants.)
Before the court is the motion of defendants Marques RondaleGunter and SalsaIndy, LLC to dismiss plaintiff’s first amendedcomplaint. For the following reasons, the motion is granted inpart and denied in part.
Plaintiff, Flava Works, Inc., is a company that produces anddistributes adult entertainment products, including DVDs, streamingvideo, magazines, photographs, and internet website content.Defendant Marques Rondale Gunter created, owns, and operates awebsite called myVidster.com (“myVidster”). The complaintdescribes myVidster as a social networking website through whichsite members can store and “bookmark” video files and post links tothird-party websites on which the files are available. Defendant
Case: 1:10-cv-06517 Document #: 44 Filed: 05/10/11 Page 1 of 17 PageID #:693
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SalsaIndy, LLC (“SalsaIndy”) is an entity “formed, owned,controlled, managed, and/or operated by . . . Gunter in someconnection with myVidster.” (First Am. Compl. 5.) DefendantVoxel Dot Net, Inc. (“Voxel”) is a company that provides web-hosting services to myVidster.
Plaintiff owns several registered copyrights and trademarks.It alleges that members and/or users of myVidster (including theJohn Doe defendants) have, without plaintiff’s permission, uploadedplaintiff’s copyrighted videos and images, or links to thosevideos, to myVidster. The videos and images are then available forother myVidster users to view and/or download. MyVidsterencourages users to invite others to view uploaded and bookmarkedvideos; the website states, “While bookmarking videos can be a funand addictive activity, it is more enjoyable in the company of likeminded friends. The form below will send invites to your friendstelling them about myVidster and you will be given the option toprovide a link to your video collection.” (First Am. Compl. ¶ 24.)MyVidster offers inexpensive storage space for videos.In plaintiff’s view, Gunter has, by offering low-cost storagespace and encouraging users to share and view videos, “purposefullycreated a system that makes it more difficult for copyright owners
Voxel recently provided plaintiff with a sworn declaration that it no
longer hosts myVidster, and plaintiff has withdrawn its pending motion for apreliminary injunction as to Voxel. (The motion is still pending against Gunterand SalsaIndy, and a hearing is scheduled for May 18, 2011.)
Case: 1:10-cv-06517 Document #: 44 Filed: 05/10/11 Page 2 of 17 PageID #:694
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to monitor the site for infringement.” (First Am. Compl. 25.)Plaintiff alleges that after a number of its copyrighted moviesand/or portions of its movies were posted on myVidster, it sent toGunter and his web-hosting companies (including Voxel) “takedownnotices” pursuant to § 512 of the Digital Millennium Copyright Act(“DMCA notices”). These notices of copyright infringementspecified the infringing material and demanded that it beimmediately removed from myVidster. The notices also identifiedusers that plaintiff suspects to be repeat infringers. Between May2010 and December 2010, Plaintiff sent Gunter seven DMCA notices.Plaintiff does not allege that defendants failed to remove thematerial from myVidster, but does allege that after the noticeswere sent, the website “continued to be updated with more and moreinfringing material from its members.” (First Am. Compl. ¶¶ 54-57.) According to plaintiff, myVidster “does not have in place anyfilters or identifiers to prevent” its copyrighted material frombeing re-posted by repeat infringers, and it “took no action towardstopping, reprimanding, or banning” repeat infringers. (First Am.Compl. ¶¶ 61-62.)The First Amended Complaint contains seven counts: directcopyright infringement (Count I); contributory copyrightinfringement (Count II); vicarious copyright infringement (CountIII); inducement of copyright infringement (Count IV); falsedesignation of origin in violation of the Lanham Act (Count V);
Case: 1:10-cv-06517 Document #: 44 Filed: 05/10/11 Page 3 of 17 PageID #:695

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