Internet Law Issue: Does Using Moderators Nullify Certain DMCA Immunity Protections?

online moderatorsOnline platforms that feature user-generated content filtered by moderators may have to find other ways to police content if a paparazzo emerges victorious in a current Internet law case.

Do Moderators Disqualify Websites From DMCA Shields?

The suit at the center is Mavrix Photographs, LLC v. LiveJournal, Inc. A Ninth Circuit Court of Appeals decision found that the Digital Millennium Copyright Act’s sanctuary clause, which absolves sites of “infringement of copyright by reason of the storage at the direction of a user,” may not provide legal shelter for moderated websites in certain IP cases.

Mavrix Photographs — “a celebrity photography company specializing in candid photographs of celebrities in tropical locations” — alleged that LiveJournal — a moderated online journal — violated Mavrix’s copyrights.

Mavrix purports that a community within LiveJournal called “Oh No They Didn’t!” violated the DMCA by posting twenty Mavrix copyrighted images between 2010 and 2014.  ONTD’s content is created and submitted by users, but moderators retain final post privileges; first, a team of volunteer moderators approves posts; then, LiveJournal employees rubberstamp the volunteer-filtered posts.

Appeal’s Court Overturns Decision: Look At Procedures, Not Creators

The Ninth Circuit reversed the lower court’s decision.  The appeal’s bench found that the district court inappropriately focused on who created and approved the material rather than LiveJournal’s content publishing procedures.  The Ninth Circuit also found that factual questions, regarding whether or not LiveJournal moderators acted as agents of LiveJournal, still needed to be addressed.

If the court decrees that LiveJoural’s moderators are agents of the site, LiveJournal could be held liable for copyright infringement over user posts.  The court needs to determine “whether Mavrix’s photographs were indeed posted at the direction of the users in light of the moderators’ role in screening and posting the photographs.”  Moreover, safe harbor stipulations won’t apply if the ONTD moderators are found to be doing more than “merely accessibility-enhancing activities.”

If this case turns out for Mavrix, it could profoundly affect site operations for the majority of semi-moderated platforms.  In fact, many websites may choose to abandon moderation altogether, to avoid potential liabilities.

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