Is Bad News for LiveJournal Bad News for the DMCA Safe Harbors? (Post 2 of 3)

This is the second of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered (and found fault with) the court’s conclusion that LiveJournal’s moderation and curation of user-submitted posts created a triable issue of fact on the question of the site’s eligibility for the section 512(c) safe harbor for sites that store material “at the direction” of users. This post will consider the court’s analysis of issue (3) of the six issues I called out in the first post: whether, in the absence of takedown notices, LiveJournal had actual or red flag knowledge that the watermarked Mavrix photos were infringing.

Is Bad News for LiveJournal Bad News for the DMCA Safe Harbors? (Post 1 of 3)

The Ninth Circuit has decided Mavrix Photographs v. LiveJournal, and the outcome is in every respect bad news for LiveJournal. In some respects, it’s also bad for the safe harbors themselves, as I’ll explain below and in subsequent posts. The district court in the case granted summary judgment for LiveJournal on grounds that there were no material factual disputes concerning LiveJournal’s eligibility for safe harbor under Section 512(c) of the DMCA. Mavrix alleged that LiveJournal infringed copyrights in its watermarked photographs. Users submitted the photos to LiveJournal along with celebrity gossip news items, and the site's moderators posted them following a fairly intensive screening process (including screening for copyright infringement). There was no question in the case that LiveJournal complied with the DMCA’s notice and takedown requirements when it received notices from right holders. However, Mavrix did not send notices for any of the photos in suit. LiveJournal removed the photos when Mavrix filed its complaint.

Amazon’s Kodi Box Ban and Copyright Liability for Device Distributors

Amazon’s latest effort to mitigate IP infringement in its third-party seller program is a ban on the sale of streaming media devices (“Kodi boxes”) that promote piracy. In addition to banning sales of the devices, Amazon reserves the right to destroy any offending physical inventory in its warehouses. The new policy raises not-so-new questions about the ability of copyright holders to control the distribution of dual-use technologies that can (but needn’t necessarily) be used to infringe copyrights. 

Leaks, geeks, & reporters

The recent spat of Washington D.C. leaks is "unusually active," according to FBI Director Mr. James Comey. Even if the leaks are as normal as they are in an allergic nose dealing with New Orleans spring pollen, what are the legal and ethical issues in leaking such confidential information, unknowingly reverse engineering it, or in publishing the leaks?

"Neural Lace," Extended Cognition, and Privacy

Imagine a world, not as distant as we might like to think, where our individual thought processes are aided and improved by technologies external to the biologically-bequeathed neural matter that sits within our skulls and throughout our nervous systems. Further, these technologies are designed and optimized to perform these functions in such a way as to become automatic or invisible to their user. And rather than act as simple one-way conduits or repositories, they actively drive their user's thinking in a manner that creates a two-way, symbiotic interaction between human and device.

Tool Without a Handle: "Trustworthy Tools" - Part 2

In my previous blog on propaganda, I noted private information, when stolen and published, can prove useful for propaganda efforts.  This post develops that concept in more detail, with an emphasis on privacy considerations.

I agree with interpretations of the First Amendment finding important protections for publication of private information without consent.  And I concur that, as a matter of principle, the public interest can justify such publication.  But too often the “public interest” defense is rather often a post hoc rationalization rather than a reasoned justification.

Contemporary analyses give insufficient weight to privacy and information security interests.  Such interests often outweigh the public interest value of making private information public without the consent of the owner or data subject, but that weight may not be recognized.  Some reasons for this potentially include media business models that reward clicks and attention, increased partisan polarity (and the utility of such disclosures for propaganda), mistrust of government, and insufficient enforcement of laws on cybercrime.  

A Response to Paul Vixie’s "Notice, Takedown, Borders, and Scale”

Late last month, I posted to SSRN a draft of my forthcoming article, “Notice and Takedown in the Domain Name System: ICANN’s Ambivalent Drift into Online Content Regulation.” The article takes a close look at ICANN’s role in facilitating a new program of extrajudicial notice and takedown in the DNS for domain names associated with accused “pirate sites.” The program is a cooperative, private venture between Donuts, the registry operator for hundreds of new gTLDs in the DNS, and the Motion Picture


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