LiveJournal is headed to trial for posting copyright-protected celebrity photos online, according to a new ruling from a federal court of appeals. Late last week, the U.S. Court of Appeals for the Ninth Circuit reversed the California District Court’s decision that LiveJournal – which hosts celebrity gossip forum, Oh No They Didn’t! (“ONTD”) – is not liable for copyright infringement for photos posted on ONTD by its moderators.
The Ninth Circuit held that “the District Court erred in granting summary judgment to LiveJournal” and as a result, the case will now go back before to the lower court to be reconsidered. Specifically, the lower court will clarify whether the ONTD moderators should be considered “agents” of LiveJournal, and therefore, whether the site will be able to escape liability thanks to the Digital Millennium Copyright Act (“DMCA”) safe harbor for online publishers that post user-generated content.
In the DMCA – a copyright statute was enacted in 1998 – Congress created a series of statutory safe harbors to limit the liability of Internet service providers, such as LiveJournal, a service used to create “communities” where users can post and comment, for copyright infringement arising from the activities of their users. If the District Court finds that the moderators were “agents” of LiveJournal, acting on its behalf, then the site will be on the hook for copyright infringement.
On the other hand, if LiveJournal can show that: (1) the infringing content is was posted “at the direction of a user,” (2) it did not have actual or “red flag” knowledge of the infringing material; and (3) upon obtaining knowledge of the infringing material, it “acted expeditiously to remove, or disable access to, the material," it will be within the bounds of the safe harbor and shielded from copyright infringement liability.
The Ninth Circuit took issue with the first factor, holding that is was unclear as to whether the photos were posted “at the direction of the user" or with the involvement of the LiveJournal moderators, whom LiveJournal "selected and provided with specific directions." According to the court, whether the moderators were paid was not dispositive; all LiveJournal moderators act in a volunteer capacity.
The recent developments stem from a 2013 lawsuit that Mavrix Photographs, a paparazzi agency that sells its celebrity photographs to various publications, filed against LiveJournal, alleging that the web host is liable for copyright infringement in connection with 20 copyright-protected photos posted to ONTD. The photos in question included one picture that appeared to show a pregnant Beyoncé before the singer announced that she was carrying twins. And according to Mavrix's complaint, LiveJournal garners millions of views per day and rakes in over $30,000 per day from advertisements located on the ONTD site.
After the District Court ruled in LiveJournal’s favor in September 2014 and Mavrix appealed, the entertainment industry rallied to file briefs in support of the paparazzi company. On the other hand, websites, such as Pinterest and Etsy, filed briefs in support of LiveJournal and the DMCA safe harbor defense. Such websites depend heavily on user contributions to their sites and rely on the safe harbors. As a result, a decision against LiveJournal could have lasting implications on those websites, and others that post user-generated content, as well.
The Ninth Circuit's decision may signal a departure from the traditional expansive protection under the safe harbor at issue, which protects websites from claims that user content infringes copyright if they expeditiously take down the content upon notice.
* The case is Mavrix Photographs, LLC v. LiveJournal, Inc., 8:13-cv-00517-CJC-JPR.