Update – Ninth Circuit Amends Opinion in Mavrix v. LiveJournal, Clarifying that Websites’ Use of Automatic Content Blocking Software Does Not Weigh Against Eligibility for Copyright Safe Harbor

n August 30, 2017, the Ninth Circuit published an amended opinion in Mavrix Photographs v. LiveJournal, a case which concerns the situations under which social media websites and other internet service providers can be held liable for copyright infringement for content submitted by users. The amended opinion removed language from the original opinion that could have potentially penalized websites that use software to automatically block infringing content by causing them to lose protection under the safe harbor of the Digital Millennium Copyright Act.

The case involved a copyright dispute between a paparazzi photo agency, Mavrix Photographs, and the social media website LiveJournal over twenty photographs posted in the site’s celebrity gossip community, Oh No They Didn’t! (“ONTD”). The photos at issue were submitted by users of the website but were reviewed and approved by moderators before they were publicly posted on the site. The Ninth Circuit’s decision concerned the issue of whether LiveJournal was immune from liability under the safe harbor, which protects internet service providers from being held responsible for infringing content submitted by users if the provider complies with the statute’s requirements.  In its original opinion, the Ninth Circuit remanded the case back to the district court to determine whether the acts of the moderators in screening the photographs and making them publicly accessible can be attributed to LiveJournal under agency principles—an overall result which did not change in the amended opinion.  (CDAS’s blog post on the Court’s original opinion, which was issued April 7, is available here.

In its amended opinion, the Ninth Circuit removed language which could have potentially disincentived internet service providers from using automatic content blocking software and taking other anti-piracy measures. To be eligible for the safe harbor, an internet service provider must show that it did not financially benefit from infringing activity that it had “the right and ability to control.” 17 U.S.C. § 512(c)(1)(B). In the section of its original opinion in which it provided guidance to lower courts on how to interpret this requirement, the Ninth Circuit noted that the factors weighing against safe harbor protection for LiveJournal might include its use of an “infringement list” identifying sources of content that had been the subject of prior infringement complaints, and the fact that it “went so far as to use a tool to automatically block any posts” from one of those sources that had previously complained.  The original opinion identified these factors among those which “constituted high levels of control” over user activities.

This portion of the original opinion posed a problem for both copyright owners and internet service providers, as it suggested that the automated content identification technology used by many online platforms to identify and block potentially infringing content on a large scale could cause those platforms to lose their protection under the safe harbor.  After the MPAA and other commentators observed that this could have the unintended and counterproductive effect of incentivizing internet service providers to stop using automatic content identification technology in order to preserve their safe harbor status, the Ninth Circuit issued its amended opinion removing the references to LiveJournal’s use of an automatic blocking tool and “infringement list.” This clarification both benefits copyright owners and provides better guidance to internet service providers.