Ninth Circuit Sends a Message to Platforms: Use a Moderator, Go to Trial

After almost two decades of litigation, you’d think the contours of the Digital Millennium Copyright Act (DMCA) safe harbors would be settled. But the cases just keep coming, and while the overall trend is pretty favorable, the latest ruling takes an unfortunate turn (PDF).

The case involves LiveJournal, a social media platform that allows users to create “communities” based on a common theme or subject. The communities are partly managed by moderators, who review posts (including photos) that users submit to make sure they follow the rules for posting and commenting created by the community. A community focused on celebrity news, called “Oh No They Didn’t” (ONTD), became particularly popular, garnering millions of views every month.

Enter Mavrix Photography, a photo agency that specialized in celebrities. Mavrix discovered that several of its celebrity photos had been posted on ONTD between 2010 and 2014. Rather than sending a DMCA takedown notice, Mavrix went straight to court to sue for copyright infringement. LiveJournal took the posts down immediately, and invoked the DMCA safe harbors, asserting that it was simply “hosting content at the direction of a user.” The district court agreed.

The Ninth Circuit took another view, based in large part on LiveJournal’s reliance on moderators to review and delete content. Those moderators, the court said, (1) might be LiveJournal’s agents; and, as such, (2) might have played such an active role in shaping the content of the ONTD community that content hosted on LiveJournal was not “at the direction of the user” (as required by the DMCA) but rather “at the direction of LiveJournal;” and (3) might have acquired actual or “red flag” knowledge of infringement that could be attributed to LiveJournal. So the court sent the case back to district court to let a jury figure it out—a very expensive proposition.

The court’s approach was surprising as a matter of law and policy. There is no dispute that LiveJournal users initially submitted the allegedly infringing content. As the district court held (PDF), “[U]sers of the LiveJournal service, not LiveJournal, select the content to be posted, put that content together into a post, and upload the post to LiveJournal’s service. LiveJournal does not solicit any specific infringing material from its users or edit the content of its users’ posts.”

The fact that moderators reviewed those submissions shouldn’t change the analysis. The DMCA does not forbid service providers from using moderators. Indeed, as we explained in the amicus brief (PDF) we filed with CCIA and several library associations, many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice.

The irony here is that copyright owners are constantly pressuring service providers to monitor and moderate the content on their services more actively. This decision just gave them a powerful incentive to refuse.