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.”