The Ninth Circuit Court of Appeals held that a website may become ineligible for the DMCA’s “safe harbor” against copyright infringement liability if the site uses moderators to select user content to post on the site.

Mavrix Photographs, LLC v. LiveJournal, Inc involves LiveJournal.com, a social networking platform.

The platform allows users to create and manage “communities” in which they can post and comment on content related to a theme. Each community can create its own rules for submitting and commenting on content.

LiveJournal has three types of unpaid administrators:

• · “Moderators” review posts submitted by users to ensure compliance with the rules.

• · “Maintainers” review and delete posts and have the authority to remove moderators and users from the community.

• · One “owner” for each community has the authority of a maintainer, but can also remove maintainers.

LiveJournal tries to avoid copyright infringement within its communities by following the notice and takedown procedures of the Digital Millennium Copyright Act (DMCA).

The site’s terms of use prohibit users from uploading or posting  “any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights.”

The site has designated an agent to which to report allegations of copyright infringement, it removes infringing materials, and it bans repeat infringers.

One popular LiveJournal community is called Oh No They Didn’t! (“ONTD”). It features celebrity news, photos, videos, and links and had 42 million page views per month by 2010. LiveJournal hired a paid moderator to grow the site and run ads on it.

Content posted in the community included photos by Mavrix Photographs showing that Beyoncé appeared to be pregnant.

Mavrix sued LiveJournal for copyright infringement based on 20 photos appearing on the site between 2010 and 2014. Some of the photos had the photographer’s watermark.

Under the DMCA, a website can avoid liability for copyright infringement if:

1. the content at issue was stored at the direction of a use,

2. the site didn’t have actual or “red flag” knowledge that the content was infringing, and

3. upon getting such knowledge, the site promptly removed the content

The Ninth Circuit held that the safe harbor might not apply to LiveJournal because it wasn’t clear if the photos were stored “at the direction of a user.”

As the court noted,

The ONTD moderators manually review submissions and publicly post only about one-third of submissions. The moderators review the substance of posts; only those posts relevant to new and exciting celebrity gossip are approved. The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing.

The court sent the case back to the district court for further proceedings

Takeaway

The case is a troubling one for websites that use moderators to select and police content, but the full impact isn’t yet clear.