A recent Ninth Circuit Court of Appeals decision signals that monitoring of user-generated content could increase your liability for copyright infringement of that content.
The Digital Millennium Copyright Act (“DMCA”) provides Internet Service Providers with immunity from liability for any copyright infringement of material posted on ISP networks or websites “at the direction of users.” A recent court case questions the possibility that a publisher that monitors content before posting may no longer be posting that content merely “at the direction of the user”.
LiveJournal.com hosts a popular celebrity news and gossip journal called “Oh No They Didn’t!” – which consists entirely of user-submitted content. Prior to posting the content, Live Journal used paid and volunteer moderators to curate and police the content for substance and possible infringement. The moderator-screening process was allegedly designed to ensure that the submissions were not pornographic or harassing and met technical standards (which is common for ISP monitoring), but also included editorial standards allegedly covering whether the celebrity gossip was new and relevant. Moderators also had the authority to delete existing posts and remove users from the community.
The plaintiff in the case is Mavrix Photography, a photo agency that specializes in celebrity photos, who alleged that many of its photos were posted on LiveJournal .com. Marvis argued that the moderators were agents of LiveJournal and because LiveJournal approved the content, the DMCA safe harbor did not apply.
The appeals court narrowly interpreted “at the direction of users” safe harbor and remanded the case back to the lower court to decide whether the moderators’ conduct in screening and approving submissions could be attributed to LiveJournal as the publisher of the content. And although the DMCA does permit publishers to ‘narrowly direct’ content towards enhancing the accessibility of the posts, “such as reformatting or re-sizing content so it fits on the website,” the Court made clear that LiveJournal’s moderators went beyond accessibility-enhancing activities, by emphasizing that only one-third of all posts submitted to “Oh No They Didn’t!” were approved by moderators and posted to the site.
It will be up to the lower court to decide whether the moderators acted as agents of LiveJournal or whether the role of the moderators negated the immunity otherwise afforded to infringing content that is posted “at the direction of the users”.
Takeaway: The full impact of the case will not come to light until the trial court revisits the issues on remand. In the meantime, companies might consider “moderating” its moderating activities to avoid functioning as editorial content gatekeepers for user-generated content.
