On April 7, in a decision with far-reaching implications for websites that allow users to post content, the Ninth Circuit reopened a paparazzi photo agency’s copyright lawsuit against the social media website LiveJournal. In doing so, the court reversed a lower court ruling in LiveJournal’s favor.
The photo agency, Mavrix Photographs, sued LiveJournal over twenty of its copyrighted photographs posted in LiveJournal’s popular celebrity gossip community, Oh No They Didn’t! (“ONTD”), including photos which appeared to break the news that Beyoncé was pregnant. The photos were submitted by users of the ONTD community but were reviewed and approved by community moderators before they were publicly posted on the site.
In response to Mavrix’s lawsuit, LiveJournal had moved for summary judgment and successfully persuaded the district court to dismiss the suit on the grounds that LiveJournal was protected by the safe harbor of the Digital Millennium Copyright Act set forth in 17 U.S.C. § 512(c). The safe harbor protects internet service providers from being held liable for copyright infringement when infringing material is posted “at the direction of a user,” provided that the internet service provider complies with the statute’s requirements.
The Ninth Circuit, however, reversed the district court’s decision that gave Live Journal immunity under the safe harbor and remanded the case for trial to determine whether the moderators, who had approved the posting of the disputed photos, were agents of LiveJournal, and if so, whether the photos were indeed posted “at the direction of users” within the meaning of § 512(c). The Ninth Circuit clarified that the actual posting of the disputed content by the moderators, rather than submission by users, is the critical inquiry for determining whether online activity is protected under the safe harbor.
Notably, the level of control LiveJournal exercised over the ONTD moderators was relatively extensive compared to some other online communities. The Ninth Circuit noted that while the ONTD community was originally exclusively operated by a team of volunteer moderators, after the site grew in popularity to 52 million page views per month in 2010, LiveJournal hired a paid full-time moderator to serve as ONTD’s “primary leader” in an effort to “take over” the site. The lead moderator instructed the team of volunteer moderators about criteria that should be used when screening posts. These factors weighed against LiveJournal.
In addition, the role of ONTD’s moderators in reviewing the substance of posts was akin to that of an editor of a publication. Unlike other sites which allow users to independently post content, the ONTD moderators manually review the substance of all submissions and only post about one-third of submissions they receive from users. Accordingly, the Ninth Circuit questioned whether the ONTD moderators’ acts went beyond the limited “accessibility-enhancing” manual activities allowed for content posted at a user’s direction under the § 512(c) safe harbor.
WHAT THE DECISION MEANS FOR COPYRIGHT OWNERS AND INTERNET PLATFORMS:
While copyright owners will be pleased with the decision because it makes it easier to enforce against online infringement, the decision creates new uncertainty and risk for social media websites, digital publishers, and other internet platforms which allow user-submitted content.
The decision highlights how websites must walk a fine line in how they use moderators to screen user-submitted content. On one hand, moderators serve a vital role in curating content, filtering out abuse, spam, and pornography, and maintaining the quality of the site. On the other hand, social media as we know it simply could not exist without the protection from copyright infringement provided by the DMCA’s safe harbor provisions. Indeed, Etsy, Pintrest, Tumblr, and Kickstarter filed an amicus brief in support of LiveJournal, arguing that a decision in Mavrix’s favor would imperil their business models.
The Ninth Circuit’s opinion also demonstrates that determining whether a given website’s use of moderators complies with the safe harbor provisions is a complex, fact-specific analysis. The opinion makes clear that simply using community volunteers as moderators isn’t enough to guarantee that a website will get to keep its safe harbor protection. (“Although LiveJournal calls the moderators ‘volunteers,’ the moderators performed a vital function in LiveJournal’s business model.”) Websites must be very careful when implementing guidelines for accepting or rejecting posts. Further, they should take measures to avoid creating an impression that the moderators have authority to act on behalf of the website. For individualized guidance on moderator policies and other ways to protect your online business in light of the Ninth Circuit’s ruling, website owners should consult with an attorney versed in copyright law.