By Irene Rajagopal, attorney at PAPER Law Office
In Mavrix Photographs, LLC v. LiveJournal, Inc.,14-56596, 2017 WL, the Ninth Circuit Court of Appeal held that common law agency principles shall apply to the analysis of whether the social media platform shall be liable for the acts of its volunteer moderators, for the purpose of DMCA safe harbor for information residing on systems or networks at the direction of users.
LiveJournal is a social media platform allowing users to create and run thematic “communities”. One of the most popular LiveJounal communities was Oh No They Didn’t (“ONTD”), where users submit posts containing photographs, videos, links and gossip about celebrities’ lives. ONTD attracted 52 million page views per months in 2010. To exercise more control over ONTD for purpose of generating more advertisement revenues, LiveJounal hired a then active moderator to serve as the full time “primary leader” of ONTD.
Mavrix, a celebrity photography company, sued LiveJounal for the alleged copyright infringement on the basis of twenty Mavrix photographs posted on ONTD.
DMCA safe harbor under Section 512 (c) was used by LiveJournal as its affirmative defense (“A service provider shall not be liable ... for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider…”)
The Ninth Circuit Court of Appeal held that to eligible at the threshold for the Section 512(c) safe harbor, “LiveJournal must show that the photographs were posted at the direction of the user”. Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, 2017 WL 1289967, at *1 (9th Cir. Apr. 7, 2017) The critical inquiry is about who posted the photos online, rather than who submitted the photos to the online service providers. In this case, the volunteer moderator screened and reviewed the photographs, but the moderator cannot recall if he has posted the alleged photographs.
First, the Ninth Circuit Court of Appeal guided to determine if the moderator is an agent of LiveJounal so that the moderator's acts could be attributed to the owner of the social media platform. When applying the common law agency principles, the Ninth Circuit Court of Appeal emphasized that “whether an agency relationship exists also depends on the level of control a principal exerts over the agent”. The Ninth Circuit Court of Appeal concluded that there are genuine issues of material fact as to whether the moderators are LiveJounal agents.
The Ninth Circuit Court of Appeal further provided the guidance to determine whether the post were at the direction of the user, if there is a finding that the moderators are the agents of LiveJounal.
Posts are at the direction of the user if the service provider played no role in posting them on its site or if the service provider carried out activities that were “narrowly directed” towards enhancing the accessibility of the posts. See UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F.Supp.2d 1081, 1092 (C.D. Cal. 2008);
See Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, 2017 WL 1289967, at *7 (9th Cir. Apr. 7, 2017)
The Ninth Circuit Court of Appeal noted that § 512(m) of the DMCA provides that no liability will arise from “a service provider monitoring its service or affirmatively seeking facts indicating infringing activity.” See Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, 2017 WL 1289967, at *7 (9th Cir. Apr. 7, 2017).
Reversing and remanding the case back to the district court, the Ninth Circuit Court of Appeal further provided guidances to determine two remaining elements of Section 512(c) safe harbors: (1) the online service provider shall lack both actual and red flag knowledge of the infringement; (2) the online service provider shall not financially benefit from infringement that it had the right and ability to control.
In short, when an online service provider monitors, screens and posts the submission from the users, rather than staying in a passive role, the analysis of DMCA Safe Harbor can be facts specific.
This decision represents the Ninth Circuit Court of Appeal's position on the interpretation of the DMCA as
a balance between the interests of “copyright holders in benefitting from their labor; ... entrepreneurs in having the latitude to invent new technologies without fear of being held liable if their innovations are used by others in unintended infringing ways; and those of the public in having access [to] both....” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1037 (9th Cir. 2013).
Mavrix Photographs, LLC v. LiveJournal, Inc., 853 F.3d 1020 (9th Cir. 2017)
In such a balance, entrepreneurs will not be given a free pass of copyright infringement. Instead the safe harbors are subject to terms and conditions.
About the author: Irene Rajagopal is an international copyright and business attorney. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC.
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