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The Ninth Circuit’s Erroneous Discouragement of Moderators in Mavrix v. LiveJournal

· April 24, 2017

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The Ninth Circuit’s recent decision in Mavrix v. LiveJournal has been criticized for how it would discourage website operators from moderating their sites. This post explains how such a result runs contrary to Congress’s intent for the role of Internet intermediaries.

LiveJournal operates the “Oh No They Didn’t” (“ONTD”) online community where users can post gossip and other materials concerning celebrities. Users submit their content to volunteer moderators who review it for relevance and compliance with LiveJournal’s rules. The volunteer moderators, who are supervised by a LiveJournal employee, allow approximately a third of the submissions to appear online. Mavrix, a celebrity photo agency, claims that some of the images posted on ONTD infringed its copyrights. It sued LiveJournal for copyright infringement without first issuing any takedown notices under the Digital Millennial Copyright Act (“DMCA”). After removing the allegedly infringing content, LiveJournal moved for summary judgment on the grounds that it complied with the requirements of the DMCA’s safe harbors. The district court granted summary judgment to LiveJournal, and Mavrix appealed. The Ninth Circuit reversed the district court. (CCIA filed an amicus brief in support of LiveJournal in the Ninth Circuit.)

Among the Ninth Circuit’s many problematic rulings, the court found that LiveJournal’s use of moderators might disqualify it from the DMCA’s protection. Under 17 U.S.C. § 512(c), a service provider is not liable for damages for infringement of copyright “by reason of the storage at the direction of a user of material that resides” on a website controlled by the service operator. The Ninth Circuit found that there were genuine issues of material fact as to whether the content was stored at the direction of users or at the direction of the moderators. The court held that “posts are at the direction of the user if the service provider played no role in posting them on its website or if the service provider carried out activities that were ‘narrowly directed’ towards enhancing the accessibility of the posts.” On remand, “the fact finder should determine whether LiveJournal’s manual, substantive review process went beyond the automatic processes we have approved at accessibility-enhancing activities such that the posts were still at the direction of the user.”

The Ninth Circuit acknowledged that the Fourth Circuit in CoStar v. Loopnet extended accessibility-enhancing activities to include a real-estate website’s manual screening to determine whether photographs in fact depicted real estate, but stressed that such screening was only “cursory.”

The Ninth Circuit’s hostility to a service provider’s substantive review process contradicts Congressional articulation of the appropriate role of Internet intermediaries. The DMCA’s safe harbor for information location tools, i.e., search engines, provides protection for a service provider that links to an online location containing infringing material. When the DMCA was pending before Congress in 1998, Yahoo expressed concern about its eligibility for this safe harbor because its employees actually visited websites to determine whether to include them in its directory. (That’s how Internet search engines operated twenty years ago.)

In response, the House and Senate Judiciary committees adopted report language that a directory such as Yahoo did not lose its safe harbor by virtue of its employees visiting and then linking to websites that turn out to contain infringing content. “Directories are particularly helpful in conducting effective searches by filtering out irrelevant and offensive material,” the reports stated. The reports then specifically referenced Yahoo’s directory, noting that it was created by people visiting websites to categorize them. The reports add, “it is precisely the human judgment and editorial discretion exercised by these cataloguers that make directories valuable.” The reports explain that section 512(d) “is intended to promote the development of information location tools generally, and Internet directories such as Yahoo’s in particular, by establishing a safe harbor from copyright infringement liability….” For this reason, “the knowledge or awareness standard should not be applied in a manner which would create a disincentive to the development of directories which involve human intervention.”

Similarly, the Conference Report for the DMCA states that section 512 was “not intended to discourage the service provider from monitoring its service for infringing material.” Accordingly, “courts should not conclude that the service provider loses its eligibility for limitations on liability under section 512 solely because it engaged in a monitoring program.”

Given Congress’s interest in promoting directories reflecting “human judgment and editorial discretion” under the section 512(d) information location safe harbor, and the statements concerning monitoring in the Conference Report, it makes no sense that Congress would want the section 512(c) hosting safe harbor applied in a manner that discouraged the human filtering of content. Yet that is exactly what the LiveJournal decision does.

Furthermore, the LiveJournal decision contradicts the policy reflected in section 230 of the Communications Decency Act (“CDA”), adopted in 1996, two years before adoption of the DMCA. In 1995, a New York court held that the Prodigy bulletin board service was strictly liable for allegedly defamatory material posted by a user about financial services company Stratton Oakmont. The court based its decision in part on the fact that Prodigy monitored the content of its bulletin board for conformity with standards set forth in its content guidelines. Congress quickly realized that the Stratton Oakmont decision led to an anomalous result: an Internet service provider could be penalized for its efforts to rid the Internet of inappropriate content. Accordingly, to eliminate this perverse incentive, Congress adopted 47 U.S.C. § 230(c)(1), which provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Another provision of the CDA, part of a section ultimately found unconstitutional by the Supreme Court on First Amendment grounds, provided that no online service “shall be held liable” on account of “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Thus, neither of the safe harbors enacted by Congress in the 1990s for Internet intermediaries—the CDA and the DMCA—were intended to discourage the use of human moderators. And copyright owners now certainly should not applaud the LiveJournal decision’s disincentive for moderators. As they made abundantly clear in the Copyright Office’s ongoing study of section 512 of the DMCA, copyright owners want Internet intermediaries to be more proactive in preventing infringement, whether through filtering or notice and stay-down. The last thing content providers should want would be an interpretation of the DMCA that penalizes intermediaries for taking action to prevent infringement.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.