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").
Following our November notice, we are again reminding all online "service providers" to re-register with the U.S. Copyright Office's new DMCA agent directory. Any service provider that has designated an agent with the Office already prior to December 1, 2016, must re-submit a new designation electronically using the new online registration system by December 31, 2017, in order to avoid loss of DMCA safe harbor protection (17 USC 512). The new flat fee is now only $6 per registration (compared to the $105 previously). However, registrations will now expire after three years, and online service providers need to renew their registrations before the time of expiration in order to maintain the safe harbor protection. To familiarize users with the new system, the Copyright Office has released a number of tutorial videos: https://www.copyright.gov/rulemaking/onlinesp/NPR/index.html.
A new Copyright Office rule will go in effect this December 1, 2016, and will require all service providers to now electronically register with the Copyright Office, in order to qualify for DMCA Safe Harbor. This new filing system replaces the old, and will also require even those who have already filed with the Copyright Office to re-register. Further, re-registration will be required every three years thereafter. The cost of each filing now, however, will only be $6, compared the the $105 fee previously set. The DMCA Safe Harbor provision, codified in 17 USC 512, provides limitations to liability for certain conduct of a service provider's users which may violate the copyright ownership of another, so long as the service provider is in compliance. To avoid inadvertent loss of this protection, please contact your copyright counsel or file a new registration by December 31, 2017.