January 01, 2015

“Oh No They Didn’t!”: Recent DMCA Decision Has Unfortunate Consequences

Jennifer L. Dollard

Last month, the US Court of Appeals for the Ninth Circuit issued an opinion that will make it more difficult for content-hosting platforms to rely on the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). Mavrix Photographs, LLC v. LiveJournal, Inc., No. 14-56596, 2017 U.S. App. LEXIS 6028 (9th Cir. Apr. 7, 2017)(Mavrix). Copyright owners rejoiced in response, but the Mavrix decision will likely have broad ramifications on what screening procedures, if any, service providers will adopt for user-generated material going forward.

At issue in Mavrix were 20 copyright-infringing photographs that were posted to a celebrity news website called “Oh No They Didn’t!” (ONTD). ONTD is hosted by the social media platform LiveJournal. ONTD users submit proposed articles containing photographs, videos, and gossip about celebrities’ lives, and ONTD moderators review and publicly post some of the submissions. The moderators review the submissions for substance, approving only those relevant to new and exciting celebrity news. The moderators also review to ensure that the posts do not contain pornography or harassment. Most of the moderators are unpaid volunteers.

In 2014, Mavrix, a photography company specializing in candid shots of vacationing celebrities, filed a copyright infringement suit against LiveJournal concerning certain photos posted on ONTD. Interestingly, Mavrix did not first utilize LiveJournal’s notice-and-takedown procedure to have the photographs removed. LiveJournal moved for summary judgment citing Section 512(C) of the DMCA, which provides a safe harbor for service providers such as LiveJournal to avoid copyright infringement liability for its users’ content if the service provider expeditiously removes the content after receiving notification from a copyright owner that the content is infringing. The district court granted LiveJournal’s motion for summary judgment, and Mavrix appealed.

In a surprising turn, the Ninth Circuit reversed summary judgment. It noted that a threshold condition for applying the Section 512(C) safe harbor is a finding that the infringing material was posted at the direction of the user. The appellate court found the determination of whether Mavrix’s photographs were posted to ONTD at the direction of the user depended on whether the moderators’ actions could be attributed to LiveJournal. The court ultimately held that because LiveJournal both gives its moderators express directions about screening functions, and relies on the moderators as a part of its business model, a reasonable juror could conclude that the moderators are agents of LiveJournal, and therefore their actions may be attributable to LiveJournal—rendering the Section 512(C) safe harbor inapplicable.

Although content generators have been advocating for the demise of the DMCA safe harbors for years, their main argument has been that the notice-and-takedown procedures inappropriately place the burden of identifying piracy on the copyright owner. Indeed, the music industry has been urging Congress to transition to a “notice-and-stay-down” method, which would require online content hosts to affirmatively monitor its users to ensure that infringing content does not get reposted. Ironically, this decision just gave service providers a powerful incentive to exercise less oversight of its users’ posts—or risk losing DMCA safe harbor protection altogether.

Jennifer L. Dollard

Jennifer L. Dollard is an associate with the commercial litigation firm Faruki Ireland Cox Rhinehart & Dusing PLL in Cincinnati, Ohio.