Curating Content May Defeat DMCA Protections: Mavrix Photographs v. LiveJournal

The DMCA safe harbor (17 U.S.C. § 512) immunizes websites and other internet service providers from copyright infringement caused by their users if the providers follow certain procedures. Generally this means providers have to remove copyrighted works as soon as they become aware of them.

But what if you have a bunch of volunteer moderators / curators determining which user submissions to post? Are you responsible for copyright infringement if the volunteers approve a copyrighted user submission? It seems likely, if those volunteers qualify as “agents” of your company.

In Mavrix Photographs v. LiveJournal, Inc. (April 2017), a Ninth Circuit panel concluded that volunteer moderators on a website could indeed be “agents” of the website, although the agency determination is a question of fact that cannot be resolved on summary judgment.

Importantly, the panel ruled that curating the posts (i.e. only posting about 1/3 of the submissions) probably didn’t qualify LiveJournal for the safe harbor of posting “at the direction of the user”. Previous decisions have allowed websites to take advantage of the safe harbor so long as they were only making “accessibility enhancing” changes to posts such as reformatting or screening for offensive material. But curation may be too much control:

The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing.

This reading appears to be well within the statutory language, but it threatens to put additional burdens on websites that curate (and begs the question of what exactly is curation / moderation). If you curate, how can you also ensure the content is not copyrighted by someone else? It’s not obvious.

Update: A group of internet companies including Google and Facebook have urged en banc review. They argue that this decision incentivizes companies to do no pre-screening of user submitted material, and that this is bad policy and contrary to the intent of the DMCA.

This all boils down to whether some forms of pre-screening are extensive enough to consider it reasonable that the company should police copyright infringement too. And to be fair the panel’s decision didn’t say one way or the other: it just said there are enough fact issues that you can’t decide on summary judgment.