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The EU’s new General Data Protection Regulation (GDPR) will come into effect in the spring of 2018, bringing with it a newly codified version of the “Right to Be Forgotten” (RTBF). Depending how the new law is interpreted, this right could prove broader than the “right to be de-listed” established in 2014’s Google Spain case. It could put even more decisions about the balance between privacy and free expression in the hands of private Internet platforms like Google.
Updated May 11, 2017. Keep your recommendations coming and I'll update periodically.
Nailing down the definitive literature on First Amendment expressive freedoms is a tricky task. What’s the consensus among scholars about the classics? Even more complex is figuring out what emerging scholarship on the intersection of speech and press freedoms with new media technologies will have a lasting impact.
This is the last of three posts on the Ninth Circuit’s decision in Mavrix v. LiveJournal. The first post considered 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. The second post examined the court’s analysis of LiveJournal’s potential knowledge of the alleged infringements in light of the fact that Mavrix didn’t send takedown notices for them. This final entry takes a look at what I identified in the first post as issue (4): whether LiveJournal had the right and ability to control the infringements, as evidenced by the required “something more” than the right to remove or block access to user-submitted infringing material.
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.
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 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.