In 2010, the company that hosts the celebrity gossip forum Oh No They Didn’t!, saw an opportunity to capitalize on the site’s popularity. ONTD is a community forum, which means that its content consists of posts from its readers. That content was originally screened by volunteer moderators from within the user base. They did such a good job that ONTD attracted millions of views a month -- which, in turn, led ONTD’s host site, LiveJournal, to realize it could make money by selling ads on ONTD. LiveJournal hired one of the forum’s volunteer editors to act as lead editor and, according to an opinion issued Friday by a three-judge panel at the 9th U.S. Circuit Court of Appeals, “sought to exercise more control” over ONTD’s content.
As a result, LiveJournal is now exposed to liability for post content that infringed copyrights, despite the Digital Millennium Copyright Act’s safe harbor for online publishers that post user-generated content.
The 9th Circuit agreed with the celebrity photo agency Mavrix that ONTD’s moderators may be functioning as agents of LiveJournal in controlling what is uploaded to the site. “There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts,” wrote Judge Richard Paez for a panel that also included Judges Harry Pregerson and Morgen Christen. “Unlike other sites where users may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model.”
The 9th Circuit vacated a decision by U.S. District Judge Cormac Carney of Santa Ana, California, that granted summary judgment to LiveJournal under the DMCA’s protection for content posted at users’ direction. The appeals court did not decide conclusively that the facts show ONTD’s moderators are LiveJournal agents but said reasonable jurors could come to that conclusion.
There’s surprisingly (to me, anyway) little precedent on how much editorial control online publishers can exercise over user-generated content without losing safe harbor protection. The 9th Circuit cited its own 2013 decision in UMG v. Shelter Capital, which involved the video-sharing site Veoh’s automated software to enhance the accessibility of user-posted uploads. It also mentioned a Manhattan federal judge’s 2013 decision (on remand from the 2nd Circuit) that automated screening does not preclude publishers from relying on the safe harbor.
Here, of course, the screening was not automated but conducted by moderators instructed to curate the hottest celebrity stories shared by users. Mavrix’s lead counsel, Peter Afrasiabi of One LLP, said that by filtering out about two-thirds of users’ posts -- discarding news from suspect sites in favor of user posts reproducing articles from trusted sources like People Magazine -- LiveJournal basically curated an online celebrity magazine without paying to create content.
At true user-generated sites like YouTube, Afrasiabi said, “sites are full of junk.” By contrast, he said, readers -- and advertisers -- know they can rely on ONTD’s moderators to screen out the junk and keep the site filled with hot celebrity news from credible outlets. To Afrasiabi, the business model permits LiveJournal to profit by encouraging its users to infringe copyrights. “That’s the modern Internet business,” he said.
He argued that digital publishers like LiveJournal are abusing the DMCA’s safe harbor by promulgating a fiction that their content is directed by users. Content creators like Mavrix are the victims of this alleged subterfuge, Afrasiabi said, because traditional celebrity publications won’t pay as much for exclusives that will inevitably be reproduced by ONTD and similar sites across the Internet.
“This is a massively important case for copyright holders,” he said.
LiveJournal received broader amicus support at the 9th Circuit than Mavrix, which was backed by the Motion Picture Association of America and another photo agency. LiveJournal’s amici included the Electronic Frontier Foundation and other public interest groups, which argued that curation and editing is allowed in the DMCA’s safe harbor provisions; as well as Etsy, Pinterest, Tumblr and Kickstarter, which said Mavrix’s position would imperil their businesses. “Under Mavrix’s approach, service providers could not moderate content, attempt to screen out objectionable material or organize the information that their users submit without putting their safe harbor at risk,” they wrote.
Wayne Barsky of Gibson, Dunn & Crutcher argued for LiveJournal at the 9th Circuit. In an email, he said he was traveling and unavailable to comment. LiveJournal’s brief to the 9th Circuit argued that ONTD is exactly the kind of user-generated forum the DMCP was meant to protect. If Mavrix wanted to protect its copyrights, LiveJournal said, it should have notified ONTD and requested the allegedly infringing material be taken down. Mavrix, which concedes it did not send a take-down request to ONTD, said that’s because such notices are only appropriate for sites entitled to safe-harbor protection, which it contends ONTD did not merit.