Online communities under threat in new copyright decision

A Ninth Circuit copyright decision in Mavrix v. LiveJournal could bring nasty implications for online communities, threatening the copyright “safe harbor” provisions that allows those communities to form.

Specifically, the Ninth Circuit has said that volunteer moderators of online communities may be considered “agents” of the platform they’re on, and that if those moderators learn about copyright infringements (or “red flags” that suggest infringements) that it’s like the platform itself learning about them. That’s really important, because platforms can only claim the “safe harbor” provided by the Digital Millennium Copyright Act (DMCA) if they do not have that kind of knowledge.

Being in that safe harbor is generally considered a pre-requesite to operating a large platform for user-generated content. So the concern goes: if platforms can’t allow volunteer moderators to curate communities without incurring massive copyright liability, they may decide to disable community moderation altogether.

Two major caveats here. The first is that the Ninth Circuit didn’t say these moderators are “agents” of the platform. It just said that the lower court was too hasty in saying they were not, and that a trial was necessary to decide. That’s still bad news, though. The companies that run major platforms generally will go to great lengths to avoid the expense and uncertainty of a trial. If a volunteer-moderated community is a magnet for litigation, platforms may decide it’s not worth it.

The second is that defendant LiveJournal’s handling of the situation may have exposed it to more risk than other companies or platforms face. In particular, it hired an active moderator to be the “primary leader” of the community in question. That employee relationship muddies the waters when it comes to agency, though it will be up to the lower court to articulate how exactly that works out.

Still, even if the moderator draws a paycheck from the platform, it seems unreasonable to expect them to approach thorny copyright questions with the nuance of a trained professional. That is especially true when you compare this ruling with the Ninth Circuit’s most recent opinion in Lenz v. Universal, the “dancing baby” case, which looks down the other end of the copyright gun at takedown notice senders. Notice senders must consider fair use, but only so far as to form a “subjective good faith belief” about it. If courts don’t require the people sending a takedown notice to form an objectively reasonable interpretation of the law, why should they impose a higher standard on the moderators at platforms handling staggering quantities of user uploads?

But if moderators are a platform’s “agents,” then it runs into trouble if they have actual or “red flag” knowledge of infringements. The Ninth Circuit has instructed the lower court to find out whether the moderators had either. Noting the watermarks on some of the copyrighted images in the case, the court phrased the question of “red flag” knowledge as whether “it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to a service provider’s website was infringing.” That’s an important point to watch. Copyright ownership and licensing can be extremely complex — so oversimplifying it to the idea that the presence of a watermark means any use is infringing would have profound negative consequences.

The Ninth Circuit decision kicking it back down to the district court means that these questions are very much in play. And it could already mean, as EFF puts it, that using moderators means you will have to go all the way to trial.

There’s one more troubling aspect of the opinion that drives home the cost of such a trial: anonymous moderators, whom LiveJournal was previously able to protect from deposition, may now be forced to appear.

The chilling effect here is very serious. Mavrix, already a closely watched case, is poised to attract even more attention as a district court grapples with these big questions. The fate of moderated online communities could hang in the balance.

Note: Although I used to work at the Electronic Frontier Foundation, which joined an amicus brief in this case, my views do not represent those of my former employer and also do not constitute legal advice.

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