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").
Agent's Actions Can Lead to Loss of DMCA Safe Harbor Protection for Service ProviderWritten by Tony Guo
As a specialized technology counsel, Tony supports his clients in the high tech, creative, and online industries. His primary areas of practice include intellectual property protection, Internet law, and startups. Tony is a USPTO registered patent attorney, as well as a licensed lawyer in California and Florida. He comes from a background involving considerable hardware and software development experience, having worked in both development and IT roles in the tech and finance industries.