The United States Court of Appeals for the Ninth Circuit recently decided a case that may limit the potential application of the safe harbor rules under the Digital Millennium Copyright Act (“DMCA”). The case is Mavrix Photographs, LLC v. LiveJournal, Inc., No. 14-56596 (9th Cir. 2017). This court decision could impact website owners that allow user-generated content to be posted, but also use moderators to review and approve posts. In short, moderators could be considered agents of the social media platforms, and the agent’s actions in approving the content could make the DMCA safe harbor inapplicable.
LiveJournal is a social media platform where users post content and create their own rules for each forum. Users in the forum Oh No They Didn’t (ONTD) posted 20 copyrighted photographs that were owned by Mavrix. Mavrix filed suit for copyright infringement against LiveJournal, but the District Court granted to summary judgement to LiveJournal due to the safe harbor of the DMCA that protects internet service providers from copyright infringement for content posted at the direction of users.
The Ninth Circuit reversed, however, finding that there were material questions of fact relating to whether the content was actually posted at the direction of users, whether the ONTD moderators were the agents of LiveJournal, and whether the other elements of the safe harbor applied.
The Elements of the DMCA Safe Harbor
The first element requires that the content be posted at the direction of users. ONTD moderators reviewed and approved the photos before they were posted. While ONTD primarily used volunteer moderators who were free to work when and how they wished, they also employed one full-time moderator.
The Ninth Circuit found that agency law would apply when determining whether the acts of the moderators could be attributed to LiveJournal, which would be a question for the finder of fact. Some factors weighed in favor of control of its moderators by LiveJournal, such as providing supervision to moderators and removing moderators based on their performance. Other factors weighed against an agency relationship, such as the fact that moderators could leave and come back as they wished, and could reject posts for reasons not provided by LiveJournal.
The second element of the safe harbor requires that LiveJournal did not have actual or red flag knowledge of the infringement. In this case, Mavrix did not use the procedure for notifying LiveJournal and having the posts removed, making it difficult to determine if actual knowledge existed. However, some photographs did contain generic watermarks, while others contained watermarks referring to the Mavrix website. A fact finder would need to determine if it was objectively obvious that photographs bearing these watermarks were infringing.
The final element requires a showing that LiveJournal did not financially benefit from the infringement that it had the ability to control. This would depend on findings of fact regarding LiveJournal’s ability to control infringement based on its existing procedures, and how much financial benefit LiveJournal receives from infringing material.
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