9th Circuit Sets New DMCA Safe Harbors Threshold in Mavrix v. LiveJournal

Moderators can be considered to have enough knowledge of copyright infringement on a website to undermine an ISP’s Digital Millennium Copyright Act Section 512 safe harbors, the 9th U.S. Circuit Court of Appeals ruled in Mavrix Photographs v. LiveJournal. Paparazzi company Mavrix sued in 2014 over posts on LiveJournal’s “Oh No They Didn’t!” gossip blog that contained its photos of Beyonce and other celebrities. LiveJournal argued it qualified for DMCA safe harbor protections because it didn’t have direct knowledge of the infringing blog posts. Mavrix contended LiveJournal’s team of volunteer moderators, who had the power to review blog posts for compliance with the platform’s terms of service, would have been aware of the infringing content. U.S. District Court in Santa Ana, California, ruled in 2014 that LiveJournal qualified for safe harbor protections because the blog posts were user generated and not solicited by the platform. The 9th Circuit disagreed. “The moderators performed a vital function in LiveJournal’s business model,” said Judge Richard Paez for the three-judge panel. “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.” Judges Morgan Christen and Harry Pregerson also heard the case. Posts “are at the direction of the user if the service provider played no role in posting them on its site or if the service provider carried out activities that were 'narrowly directed' toward enhancing the accessibility of the posts,” Paez ruled. "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 9th Circuit remanded the case to the district court for a jury trial using their safe harbors threshold test. “That moderators reviewed those submissions shouldn’t change the analysis,” said Electronic Frontier Foundation Legal Director Corynne McSherry in a Saturday blog post. “The DMCA does not forbid service providers from using moderators.” Many “online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service,” McSherry said. “Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice.” LiveJournal and Mavrix didn’t comment.