Appellate judges say trial, facts needed to determine if web service’s claim for ‘safe harbor’ undone by ‘volunteers’ moderating celebrity content

Celebrity content has sprouted online on gossipy sites like spring wildflowers after California’s heavy winter rains. But will the courts douse the untrammeled enthusiasms for these enterprises by finding that businesses that host and support such web venues may have limits to “safe harbors” they might seek from infringement claims in the Digital Millennium Copyright Act?

The U.S. Court of Appeals for the Ninth Circuit has fired a warning shot to online service providers about the limits of their legal protections, particularly when people connected with them play roles in moderating stories or pictures about famous folks of the moment.

In a closely watched case, the appellate judges gave new life to infringement claims by Marvix Photographs, a company specializing in celebrity gossip (i.e., paparazzi) images, and potentially other content creators. This ruling raised big questions about the content practices of online platforms, notably LiveJournal, Marvix’s defendant and a blog-hosting powerhouse. The case also wraps in elements like editorial judgement and revelations about a diva’s pregnancy. What’s the hot legal scoop here?

A Beyonce ‘bump’ photo launches a legal battle

Marvix Photographs sued LiveJournal in 2103 after noticing that some Marvix celebrity shots—including one revealing Beyonce’s pregnancy—appeared on the celebrity gossip site “Oh No They Didn’t.” That site, a “community” with tens of thousands of members, is hosted and operated by LiveJournal, which denied Marvix’s infringement claims.

LiveJournal argued that DMCA “safe harbor” provisions protected it, because the web platform simply and neutrally had stored “at the direction of users” the disputed content and had the site itself had not posted it. This, the company asserted, meant it had met one of many requirements sites must satisfy to claim DMCA “safe harbor” protections. LiveJournal also argued that, because the content wasn’t posted at its own direction, it had no knowledge of infringing material.

But Marvix replied that LiveJournal had used at least a half dozen “volunteers” as moderators to review content before it was posted to the “Oh No They Didn’t” site. Moderators handled materials, making choices about them—in effect editing them on behalf of LiveJournal. That, Marvix said, defeated the web service’s claims that it had no role, had acted like a billboard for robust posting of varied content, and, thus, deserved “safe harbor” from infringement claims. The district court disagreed, granting summary judgement and finding the moderator’s actions not attributable to LiveJournal, allowing it a DMCA shield.

More facts needed

The appellate judges remanded the case, saying the district court should not have dismissed Marvix’s claims so readily. The lower court at trial needed to dive much deeper into the web providers’ content practices.  U.S. Circuit Judge Richard A. Paez, writing for the three-member panel, observed that: “Although LiveJournal calls the moderators ‘volunteers,’ the moderators performed a vital function in LiveJournal’s business model. There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model.”  Paez said the trial court needed to act as a finder of fact to determine if the moderators are agents of the company with knowledge of potential infringements that transfers to the site, and the web service, itself.

LiveJournal has not said if it will appeal the Ninth Circuit decision, or if it will battle the case out on remand. The case already has attracted major attention, with companies and organizations lining up to file amicus briefs. Those weighing in included: the Motion Picture Association of America (a tip of the hat to the Hollywood Reporter Esq. for putting the content online), the Computer and Communications Industry Assocation, the American Library Association, the Association of College and Research Libraries, the Electronic Frontier Foundation, Kickstarter, Etsy, Pinterest and Tumblr.

The LivJournal case offers an inkling of the considerably unsettled and legally closely watched state of DMCA “safe harbors,” and web service providers,  as indicated by recent disputes between Vimeo and the music recording industry. Vimeo changed its copyright patrolling practices after a recent decision by the U.S. Court of Appeals for the Second District. On the provider side, the issue of moderation may get even more complicated as companies employ novel means of curation of the vast amounts of material going up online.