Ninth Circuit: Use of Moderators Threatens DMCA Safe Harbor Protection
In a recent decision, the Ninth Circuit held that the use of moderators may cause an online service provider to be ineligible for the safe harbor from copyright infringement liability provided under the DMCA.1
Section 512(c) of the DMCA provides that an online service provider may be shielded from infringement liability for information residing on its systems or networks at the direction of users.2 To enjoy the protection of this safe harbor, the service provide must (1) lack actual or “red flag” knowledge of the infringing material posted by the user (or upon obtaining such knowledge act expeditiously to remove the material); and (2) must not have financially benefited from infringements that it had the right and ability to control.3 Moreover, among other requirements, upon notification of any claimed infringement, the service provide must expeditiously remove, or disable access to” the infringing material.4
This case centered on LiveJournal, a social media platform which allows users to create and run “communities” or forums in which they can post and comment on a particular topic. Such communities can create their own rules for submitting and commenting on posts. LiveJournal employs volunteer moderators, led by a LiveJournal employee, which review user posts to ensure compliance with forum rules, including a prohibition on infringing material. These moderators have authority to delete posts and remove users from the community.
The subject of this suit was LiveJournal’s most popular community, the celebrity gossip forum Oh No They Didn’t! (“ONTD”). ONTD users submit posts containing photos, videos and links about celebrities. Marvix, a celebrity photo business, filed a copyright infringement suit against LiveJournal regarding twenty Marvix photos posted on ONTD. In its defense, LiveJournal invoked the safe harbor provided under §512(c).
The Ninth Circuit held that due to the use of the moderators there were issues of fact as to whether the photos were stored at the direction of users. This issue turned on whether the acts of the moderators could be attributed to LiveJournal. Applying the common law of agency, the court held that reasonable jurors could conclude that an agency relationship existed between LiveJournal and the moderators. This relationship was expressed in the fact that LiveJournal (1) selected moderators; (2) provided express screening directions; (3) relies on moderators as an integral part of its business model; and (4) maintained significant control over the moderators, including substantive supervision and the selection and removal of moderators based on performance. Further, the court held that this use of moderators may result in actual or “red flag” knowledge of infringements being imputed to LiveJournal.
This decision is liable to have a significant impact on the manner in which service providers operate by incentivizing them to engage in a wholly “hands off” all volunteer approach, lacking service provide supervision and involvement. However, as one commentator has noted, such a result would run counter to frequent copyright owner demands for active monitoring of content by service providers.5