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

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.

Issue 4: Did LiveJournal do “something more” that demonstrates its control over its users’ infringements?

To be eligible for safe harbor, a provider can’t receive a direct financial benefit from infringing activity that it has the right and ability to control. This condition appears on its face to incorporate the common law test for vicarious copyright infringement into the safe harbor framework. In Fonovisa v. Cherry Auction, a pre-Internet premises liability case, the Ninth Circuit held that a swap meet operator had the right and ability to control its vendors’ infringements because its contract with vendors gave it the right to patrol the venue for infringing material and to expel vendors caught in the act of selling pirated sound recordings.

Adapting the premises cases to the online environment, and specifically to site operators that claim safe harbor under the DMCA, the Ninth and Second Circuits have both held that disqualification from the safe harbor must entail “something more” in the way of control by an accused site operator than the pre-Internet cases require. This higher standard is necessary when interpreting the control element in the context of the DMCA because the safe harbors are conditioned on providers’ engaging in the very behaviors (i.e., terminating access for infringers and getting rid of infringing material) that would give rise to liability under the physical premises precedents. It would make no sense, the courts have held (see Viacom and Shelter Capital), to disqualify a provider from safe harbor for being able to do—and doing—the very things it has to do to qualify for safe harbor in the first place. To give effect to Congressional intent that the safe harbors provide protection from all types of copyright liability—including vicarious—courts have read section 512(c)(2)’s control element to require “something more” on the provider’s part than the ability to terminate infringers and block access to infringing content.

In Viacom, which the Ninth Circuit cited approvingly in Shelter Capital, the Second Circuit noted that the requirement of “something more” could be satisfied through behaviors amounting to intentional inducement of infringement under the Supreme Court’s decision in MGM v. Grokster. The court went on to say, however, that the “something more” threshold could be met by something less than outright inducement. The focus of the inquiry must be whether the provider has exerted “substantial influence on the activities of its users.”

The district court in this case held that LiveJournal did not exercise enough control over users and their submissions to satisfy the “something more” standard. The Ninth Circuit disagreed, remanding for reconsideration in light of facts in the record concerning LiveJournal’s “extensive” moderation practices and its fairly elaborate rules governing user submissions. Some of those rules were directed specifically to copyright infringement, including a prohibition on copying from sources that had previously complained to LiveJournal about infringement. LiveJournal also automatically blocked user submissions containing material from a specific site from which it had received a cease and desist letter. The court directed the trial court to consider on remand “LiveJournal’s extensive review process, infringement list, and blocker tool.” In light of cases like Viacom and Shelter Capital and their discussions of what “something more” might look like, I think the Ninth Circuit was right to remand on this issue.

As I wrote in my first post, LiveJournal shouldn’t lose safe harbor in this case because it didn’t post content “at the direction of users.” It plainly did act at users’ direction, because all of the content it posted came from users. Under existing DMCA case law, however, LiveJournal could lose safe harbor because it had too heavy a hand in influencing what its users directed it to do. The question is whether that influence was “substantial.” LiveJournal does seem to have channeled the efforts and interests of its users to a degree that isn’t typical of platforms that have previously qualified for safe harbor. And its lines of authority were not entirely clear with respect to its relationship to its community moderators, as the case’s dispute over agency makes clear. For good or ill from a policy perspective, the safe harbors include a version of the rule from common law that links control over third parties with liability for their bad actions. The more control a provider exercises over the actions of its users and the content of their submissions, the greater the risk of liability. The outcome in this case reinforces that policy.

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