In Mavrix Photographs, LLC v. LiveJournal, Inc. the 9th Circuit recently found that service providers are ineligible for Section 512 DMCA protection, where their agents acted as moderators for user submitted content. In this case, a three-judge panel reversed the lower court's finding, because the infringing materials at issue were not stored "at the direction of a user". The court noted that this question turned on the "role of the moderators in screening and posting users' submissions and whether their acts may be attributed to LiveJournal", the service provider. In aiding this determination, the court held that the common law of agency applies under the Supreme Court's Reid framework, noting that as applied to the DMCA -- "a service provider is liable for the acts of its agents, including its employees". This is in contradiction to a 10th Circuit decision in BWP Media USA, Inc. v. Clarity Dig. Grp. (10th Cir. 2016), holding that contractors and employees can also be "users". The case has been remanded for further fact finding at this point, and will likely turn to how the moderation was carried out, i.e. whether it was directed to "enhancing the accessibility of the posts", i..e screening for spam, trolling, or pornography, or whether the review was more extensive ("the fact finder should determine whether LiveJournal's manual, substantive review process went beyond the automatic processes we have approved as accessibility-enhancing activities such that the posts were still at the direction of the user").
In a software misappropriation case, the 5th Circuit recently held that trade secret misappropriation claims are not preempted by the Copyright Act. In making this ruling, the 5th Circuit joins ten other circuits in establishing an almost-uniform holding across the US.
In an all-or-nothing bet, Aereo suffered a tremendous loss in the Supreme Court this Wednesday. In a 6-3 decision, the Supreme Court affirmed that Aereo's technology, which transmits a copyrighted television program over the Internet, is a "public performance" as defined by the Copyright Act, and as a result its streams violated US copyright laws.
The Supreme Court has granted cert on several new cases today including four relating to intellectual property issues, including a copyright case, a trademark case, as well as two patent cases. Lyle Denniston of the Scotus Blog reports that the new cases will probably be argued in April, the last sitting of the term.
Earlier this month, the District Court for the Southern District of New York, on remand from the 2nd Circuit, sided with Google in the copyright infringement proceedings that began in 2005 over the Google Books Library Project. Judge Chin, presiding over the case, agreed that Google Books provided "significant public benefit", and accepted Google's fair use defense for the scanning of more than 20 million books for an electronic database, and making snippets of the text available for online searches.