When gossip site posted a photo of pregnant looking Beyonce, it probably didn’t anticipate much fallout. A major copyright decision that could imperil the sites business model and undermine legal defense used by other websites that depend on use content. The decision handed over ny the federal appeal court in California, came as a defeat for LiveJournal , which hosts the popular blog called “oh no they didn’t” , a forum for users to upload news about celebrities and chat about them.
The ruling came after the papparazi operation called, Marvix, which the court describes as “specializing in candid photograph of celebrities in tropical location, sued LiveJournal for copyright infringemnt over the Beyonce’s photo. LiveJournal responded in familiar legal defense, a law called the Digital Millenium Copyright Act, which shields websites from the action of their users so long as the sites follow up . Marvix decided to appeal prompting the entertainment industry, which has long groused that the safe harbors protect copyright cheats, to file brief in support of company.
A Three Judge Panel
A unanimous three judge panel decisively overturned the lower judge’s ruling , saying he failed to properly consider LiveJournal’s use of moderators, who appeared to have broad discretion to choose which photos submitted by user’s would appear on the site. In support of the decision the appeals court wrote that the Marvix, “presented evidence that the LiveJournal gave its moderator explicit and varying levels of authority to screen post. It went on to say that “Although LiveJournal calls the moderators ‘volunteers,’ the moderators performed a vital function in LiveJournal’s business model.”
The court concluded by sending the case back to the lower court to reconsider the case, and find out if the moderators should be found to be “agents” of LiveJournal-a finding that would destroy the site’s safe harbor protection. And in the event the moderators were not agents, the appeals court said the judge should consider if they had actual or “red flag” knowledge that the photos infringed on Mavrix’s copyright.
What it means for websites
According to Ed Klaris, a long-time intellectual property lawyer in New York, the opinion is hardly a death knell for those relying on DMCA protections, but certainly a warning not to get too involved in posting others’ content:
“Images could not be posted without human moderators’ intervention, raising the question whether the defendant was in effect an accomplice to the infringement. These facts forced a trial, which will cause websites to pay close attention. Until now, courts have given broad leeway to filter and curate content without losing immunity.”
Copyright owners, meanwhile, are likely to toast the decision as part of their long-running campaign to reduce the scope of safe harbor defenses.
It also shows how the legal landscape has been changing since the end of a landmark copyright lawsuit between Viacom and YouTube, which resulted in numerous defeats for Viacom, and appeared to confirm the ongoing strength of safe harbors.
Since the conclusion of that case in 2014, the entertainment industry has chipped away at the defense, earning several significant victories. These include last week’s LiveJournal ruling, and a 2016 decision in which a federal judge stripped safe harbor protection from the Internet service provider Cox Communications, and forced it to pay $25 million over illegal downloading by its customers.