Oh Yes They Did: Ninth Circuit’s Holding May Turn DMCA Safe Harbor Protections on Its Head by Alexandra Taylor, Esq.

On April 07, the Ninth Circuit Court of Appeals issued its most recent decision on the scope of safe harbor protection extended to online providers, holding that an online provider may lose its safe harbor protection if its moderators assist in selecting content submitted by user.

The factual aspects of the case involve Mavrix Photographs, LLC, a celebrity photograph agency which sued LiveJournal, Inc. for copyright infringement of several of its photographs. LiveJournal runs LiveJournal.com, a social media platform which allows users to create and run communities online. One of LiveJournal.com’s more popular communities titled “Oh No They Didn’t!” features celebrity news and gossip, with the posts within said community often including photographs.

LiveJournal.com users submit posts to volunteer moderators, who then review the posts to ensure the posts comply with the sites rules, one of which is a prohibition on copyright infringement. LiveJournal also pays a full-time employee to review and approve the posts. Interestingly Mavrix did not submit a DMCA takedown request, and instead filed suit claiming rights in twenty photographs posted on “Oh No They Didn’t!” without Mavrix’s permission.

Under the DMCA, an online provider can claim safe harbor protection if: (1) the provider “does not have actual knowledge that the material or an activity using the material” is infringing; (2) in the absence of actual knowledge, the provider “is not aware of facts or circumstances from which infringing activity is apparent”; or (3) “upon obtaining such knowledge or awareness” the provider “acts expeditiously to remove, or disable access to, the material”. 17 U.S.C. § 512(c).

This is where the facts get really important and where the Ninth Circuit made its distinction. The district court granted LiveJournal summary judgment, holding that Section 512(c) shielded LiveJournal from liability. The Ninth Circuit reversed the summary judgment, finding critical LiveJournal’s role in posting the photographs to its platform. The Ninth Circuit ultimately held that whether the photographs were posted “at the direction of the users” was dependent on whether the moderators actions could be attributed to LiveJournal. Here, the court found that a juror could conclude an agency relationship between LiveJournal and its moderators based on the following facts: LiveJournal selects and gives specific direction to its moderators, LiveJournal users may have reasonably believed that the moderators had the authority to act on behalf of LiveJournal, and LiveJournal maintained sufficient control over the “Oh No They Didn’t!” community through LiveJournal’s supervision, selection, and removing of the moderators.

For the full Opinion, the case is Mavrix Photographs, LLC v. LiveJournal, Inc., No. 14-56596, 2017 WL 1289967, at *1 (9th Cir. Apr. 7, 2017).

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