On Friday, April 7, 2017, the Ninth Circuit published its opinion in Mavrix Photographs v LiveJournal, a potentially significant decision touching on a number of provisions in Section 512 of the Copyright Act, which was passed as part of the Digital Millennium Copyright Act in 1998 (DMCA) and provides safe harbors for online service providers against claims of copyright infringement under certain circumstances.

The court reversed the district court’s ruling that LiveJournal qualified for the safe harbor, and while some of its holdings are positive for copyright owners—who have long advocated that the DMCA safe harbors have failed to fulfill Congress’s goal of cooperation between service providers and copyright owners in detecting and deterring online infringement—other parts of the decision may create perverse incentives for service providers to do less to prevent infringement on their sites.

I want to focus in particular on the Ninth Circuit’s suggestion that LiveJournal’s use of a technological tool to automatically block posts from certain sources may be a factor that determines whether the service had “the right and ability to control infringements”, and, consequently, whether it would be disqualified from protection under §512’s safe harbor. I think courts should resist this suggestion, as it is contrary to the text and purpose of the statute, and could disincentivise service providers from employing tools that are critical for detecting and deterring infringement.

The Case

But first, a bit of background. LiveJournal is perhaps one of the earliest social media networks, and anyone of a certain age will deny ever having posted a personal blog there. The site features a number of “communities”, and at issue here is a community called “Oh No They Didn’t!” (ONTD), which is focused on providing celebrity gossip. Community members submit photos, videos, links, and other media concerning up-to-date celebrity news. Originally, like other LiveJournal communities, posts were moderated by volunteers, but as the community became one of the most popular on LiveJournal, the company took a more active role in curating posts to attract and maximize advertising revenue. At the time of the complaint, LiveJournal employed a full-time community leader, who oversaw a team of volunteer moderators charged with screening and approving user submissions.

Mavrix Photographs is a photo agency specializing in photos of celebrities, which it licenses to celebrity magazines. It alleges that between 2010 and 2014, twenty of its photos were posted on ONTD without authorization, and it sued LiveJournal for copyright infringement. LiveJournal asserted it was immune from liability under the §512 safe harbor and moved for summary judgment, which the district court granted. Mavrix appealed to the Ninth Circuit.

Section 512(c) shields service providers from liability “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider”, and the bulk of the Ninth Circuit’s decision hinged upon whether, given the volunteer moderators’ role in screening and approving the content, that content was stored on LiveJournal “at the direction of a user.” 1The court concluded that agency law governs whether such volunteer moderators are acting on behalf of LiveJournal and remanded for the factfinder to determine the ultimate question. But even if the content is stored at the direction of a user, and LiveJournal meets this threshold requirement for safe harbor protection, §512 outlines other requirements a service provider must meet. Two in particular were in dispute, and the Ninth Circuit addressed each of those in its opinion “to provide guidance to the district court” on remand.

“Right and ability to control” and technological tools

I want to focus here on one of those two in particular—the requirement expressed in § 512(c)(1)(B), which provides that a service provider cannot qualify for the safe harbor if it “receive[s] a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.”

This “right and ability to control”, as the Ninth Circuit observed, “involves ‘something more than the ability to remove or block access to materials posted on a service provider’s website.’”

The service provider does “something more” when it exerts “high levels of control over activities of users.” The service provider exerts “high levels of control,” for example, when it, “prescreens sites, gives them extensive advice, prohibits the proliferation of identical sites,” provides “detailed instructions regard[ing] issues of layout, appearance, and content,” and ensures “that celebrity images do not oversaturate the content.”

The Ninth Circuit went on to explain:

LiveJournal’s rules instruct users on the substance and infringement of their posts. The moderators screen for content and other guidelines such as infringement. Nearly two-thirds of submitted posts are rejected, including on substantive grounds. ONTD maintains a list of sources that have complained about infringement from which users should not submit posts. LiveJournal went so far as to use a tool to automatically block any posts from one source. In determining whether LiveJournal had the right and ability to control infringements, the fact finder must assess whether LiveJournal’s extensive review process, infringement list, and blocker tool constituted high levels of control to show “something more.”

Among the facts that the Ninth Circuit indicated could count as “something more” under the “right and ability to control” prong, it is the inclusion of the last one—the use of automated blocking technology—that is especially problematic for creators and copyright owners. Given the scale of online infringement, technological tools that can block, filter, or identify infringing materials are critical to addressing online piracy. Many major platforms already incorporate automated tools to minimize infringement. And a number of creators and copyright owners have urged greater adoption of such tools, recognizing that efforts to enforce copyright online are greatly ineffective in their absence.

But if the Ninth Circuit is correct, and the implementation of automated technology to block potentially infringing material can kick a service provider out of the safe harbor, it would create a powerful disincentive for the adoption of such tools. Service providers would likely decline to adopt them altogether rather than running the risk of losing safe harbor protection and being exposed to liability.

While the Ninth Circuit is correct on the law, I think its suggestion that blocking technologies give rise to “something more” under the “right and ability to control” test is contrary to the text and purpose of §512. And I get there by using the same reasoning that led to the “something more” standard in the first place.

Something more

The phrase “something more” is not found in the statute—rather, its genesis comes from case law. As the Central District Court of California explained in 2001:

[T]he “right and ability to control” the infringing activity, as the concept is used in the DMCA, cannot simply mean the ability of a service provider to remove or block access to materials posted on its website or stored in its system. To hold otherwise would defeat the purpose of the DMCA and render the statute internally inconsistent. The DMCA specifically requires a service provider to remove or block access to materials posted on its system when it receives notice of claimed infringement. The DMCA also provides that the limitations on liability only apply to a service provider that has “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of [users] of the service provider’s system or network who are repeat infringers.” Congress could not have intended for courts to hold that a service provider loses immunity under the safe harbor provision of the DMCA because it engages in acts that are specifically required by the DMCA. 2Hendrickson v. eBay, 165 F. Supp. 2d 1082, 1093-94 – Dist. Court, CD California 2001.

The same is true when it comes to implementation of technological tools for blocking or filtering content. Section 512(i)(1)(B) provides that the limitations on liability only apply to a service provider that “accommodates and does not interfere with standard technical measures”, which are technical measures used “to identify or protect copyrighted works.” Assuming for the sake of this argument that LiveJournal’s blocking tool otherwise qualified as a standard technical measure under the statute, 3It doesn’t, for reasons unrelated to this argument. Under §512(i)(2), standard technical measures “(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; (B) are available to any person on reasonable and nondiscriminatory terms; and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.” I’m not aware of any technical measure that was developed pursuant to the process laid out in the statute. it would render the statute internally inconsistent to say that a service provider would lose immunity by employing a blocking tool that is specifically required by the statute.

This interpretation is also consistent with the overall purpose of §512. Congress drafted §512 with the intent to provide incentives for service providers and copyright owners to detect and deter online infringement. 4S. Rep. No. 105-190 at 20 (1998). It would run contrary to this intent if service providers were discouraged from employing automated tools that do just that to preserve their safe harbors.


Courts should, instead of looking at steps taken to prevent infringing activity, focus on facts that show the ability to control infringing activity. That’s not to say that under no circumstances is the use of automated technology disqualifying—a service provider might tout its use of filtering or blocking tools merely as a pretense while continuing to facilitate and profit off infringement. But courts could also, as the Ninth Circuit noted here in a footnote, find right and ability to control if the facts show a service provider intentionally induced infringement. Similarly, as the MPAA argued in its amicus brief, if the facts show that a service provider actively reviews and prescreens each user submission for the purpose of curating likely infringing content intended to draw visitors to the site, then it necessarily exercises higher levels of control over activities of users that would kick the service provider out of the safe harbors under this prong.

References   [ + ]

1. The court concluded that agency law governs whether such volunteer moderators are acting on behalf of LiveJournal and remanded for the factfinder to determine the ultimate question.
2. Hendrickson v. eBay, 165 F. Supp. 2d 1082, 1093-94 – Dist. Court, CD California 2001.
3. It doesn’t, for reasons unrelated to this argument. Under §512(i)(2), standard technical measures “(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; (B) are available to any person on reasonable and nondiscriminatory terms; and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.” I’m not aware of any technical measure that was developed pursuant to the process laid out in the statute.
4. S. Rep. No. 105-190 at 20 (1998).

How Google Book Search Got Lost — Scott Rosenberg writes about how the service has become almost dormant: “The Google Books ‘History’ page trails off in 2007, and its blog stopped updating in 2012, after which it got folded into the main Google Search blog, where information about Books is nearly impossible to find. As a functioning and useful service, Google Books remained a going concern. But as a living project, with plans and announcements and institutional visibility, it seemed to have pulled a vanishing act. All of which felt weird, given the legal victory it had finally won.”

Trump Taps Vishal J. Amin as New ‘IP Czar’ — The current senior counsel of the House Judiciary Committee has been tapped to succeed Danni Marti as Intellectual Property Enforcement Coordinator.

AFL-CIO supports H.R. 1695 — In a letter to House Judiciary Committee Ranking Member John Conyers, the union writes in support of the Register of Copyrights Selection and Accountability Act, saying “On behalf of our more than 10 million members, the AFL-CIO strongly believes that working people in the arts and entertainment industry stand to benefit from a well-functioning, impartial Copyright Office. By finally making the Register of Copyrights a principal officer under the Constitution, nominated by the President and confirmed by the Senate, USCO will be able to fully exercise the various authorities granted in the U.S. Copyright Act. Furthermore, it will give the American people the opportunity to weigh in on the Register selection process every ten years through their elected officials.”

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Comments on the ‘value gap’ provisions in the European Commission’s Proposal for a Directive on Copyright in the Digital Single Market (Article 13 and Recital 38) — Dr Silke von Lewinski of the Franklin Pierce Center for IP writes that the proposed “value gap” provisions do not modify EU law, as some critics have argued, but rather merely clarifies it.

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Announcing the Release of Over 2,000 Pages of Lost Pre-1870 Copyright Records — Very cool and monumental effort from former US Copyright Office Kaminstein Fellow Zvi Rosen. Prior to 1870, copyright records were maintained by individual Federal District Courts throughout the US, so it was no easy task to locate and digitize them all.

Critics Build House of Canards to Trash USCO Bill — David Newhoff at Illusion of More responds to critics who “feel the next Register [of Copyrights] could ‘go to eleven’ and be even more extra totally double-secret ‘captured’ by Hollywood. And the way this will happen is by reorganizing the USCO relative to the LOC. It’s an argument based on innuendo, laced with emotional triggers for readers (see references to SOPA & Disney); but there is no substantive case being made as to why this reorganization will increase the potential for inappropriate deference to major rights holders.”

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Uber said to use “sophisticated” software to defraud drivers, passengers — It’s amazing the types of disruptive things you can do with technology.

On Piracy Culture — A must-read article from Siddhant Adlakha at Birth.Movies.Death that takes a look at what piracy means for art from the consumer’s perspective. Adlakha writes, “In the case of cinema and all visual art forms, the things people download involve labour. While it’s easy to see blockbusters as calculated products of evil, self-perpetuating conglomerates, we often forget they still depend on hundreds and thousands of below-the-line-artists, with even folks in key positions making far less than your average A-list actor. This is of course to say nothing of independent films, which also fall victim to rampant piracy if they don’t get widespread distribution (Hell, even if they do), and even the workers and artists who don’t benefit directly from ticket sales often find their future employment depending on the success of each project.”

Statement of House Judiciary Committee Chairman Bob Goodlatte Markup of H.R. 1695, the “Register of Copyrights Selection and Accountability Act” — Chairman Goodlatte notes in his statement, “The current vacancy within the Register’s Office is a timely one as we consider the Copyright Office of the future. But we should not hold up replacement of the Register to resolve the other issues that will take more time to address. So I and 29 of my colleagues introduced this legislation as a way to speed up consideration of this key component before other changes to the Copyright Office are made.” H.R. 1695 was reported out of the Committee on Wednesday by an overwhelming and bipartisan vote of 27-1.

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New Phoenix Center Study Demonstrates that DMCA “Safe Harbor” Provisions Cost U.S. Music Industry Nearly $1 Billion Annually in Lost Revenue [PDF] — “The source of the distortion in licensing negotiation appears to be that at any one time, there may be multiple unauthorized copies of a particular song available notwithstanding compliance with the safe harbors, suggesting that services may essentially be able to offer access to music without paying royalties and still claim safe harbor protection for infringement. The evidence appears to confirm the claim: market-based royalties for subscription-based services are about eight-times larger than that paid by YouTube.”

Study – Creators Frustrated with DMCA (with Pandas!) — Rebecca Cusey reports on the results of a survey of individual creators about their experience finding and addressing infringement of their own works and the extent to which they make use of the DMCA’s notice and takedown provisions. And, yes, there are pandas.

Goodlatte, Conyers, Grassley, Feinstein, Leahy Call for Quick Action on Legislation to Provide Selection Process for Register of Copyrights — An issue with bipartisan, bicameral support? Yes, please. Late Thursday, House Judiciary Committee Chairman Goodlatte and Ranking Member Conyers, along with 29 cosponsors, introduced a bill that would change the appointment process for the Register of Copyrights, a position that has not had anyone permanently in the role since last October. The bill is the first step in broader efforts beginning four years ago to modernize the US Copyright Office.

What the Supreme Court’s First Ruling on Fashion Copyrights Means for the Runway — It’s not often I get to link to a story on Vogue. The fashion magazine speculates on the impact of Wednesday’s Supreme Court decision in Star Athletica v Varsity Brands, which laid out a new test for conceptual separability.

Understanding ownership and property in the Digital Age — ICLE’s Geoffrey Manne and Neil Turkewitz explain why a “buy” button for digital files doesn’t deceive consumers, despite the fact that most often digital files are licensed rather than sold. “Quite simply, we are accustomed to buying licenses as well as products. Whenever we buy a ticket — e.g., an airline ticket or a ticket to the movies — we are buying the right to use something or gain some temporary privilege. These transactions are governed by the terms of the license. But we certainly buy tickets, no?”

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Google ‘promotes copyright piracy’: Getty ImagesThe Australian reports, “Getty Images has launched a ­blistering attack on Google’s attempts to water down Australian copyright laws, accusing the company of ‘adversely affecting’ its business and ‘promoting piracy’. The government is seeking to extend the copyright safe harbour provision to online intermediaries such as Google and Facebook, giving them immunity for infringing user-uploaded content on their platforms. A majority of local major rights holders in the entertainment and sports worlds have joined forces to oppose the proposal.”

Non-Profit Groups Urge Congress to Support Copyright Laws (Guest Column) — “In support of the millions of Americans who currently make a living in the creative industries and the next generation who will join them, our two organizations – the Copyright Alliance and CreativeFuture – recently sent a letter to all elected officials outlining the importance of copyright. Over 70,000 individuals signed their name to this letter because they understand that without a strong copyright system, content creation and the jobs it generates across film, television, music, photography, publishing, software, and other industries would be impossible.”

Review of Professor Thomas Höppner’s Lecture In Support of Neighbouring Right for Press Publishers — “Copying content is always cheaper than generating content. Professor Höppner argues that there are probably a greater number of start-ups which utilise an aggregation business model than start-ups engaged in the production of news – why bother investing millions in a global network of journalists, editorially review their work and build a trustworthy news brand if you can easily aggregate the news content generated by others?”

‘The Last Songwriter’ Documentary Spotlights Writers in the Age of Streaming — “Songwriters earn mere pennies when their songs are played on the radio, according to the documentary’s trailer. But in the age of streaming, songwriters are struggling now more than ever to turn music into money. Songwriters earn less than a thousandth of a penny for each stream. Although they’re the backbone of the music industry, many songwriters are being forced to leave the profession since they can’t afford to make a living.”

Who Does OpenMedia Really Speak For? — Hugh Stephens writes, “What I find questionable is OpenMedia’s attempt to masquerade as a US advocacy group, when it is not even based in the US. Partnership with like-minded organizations whether at home or in other countries is one thing, but passing yourself off as a US-based organization, speaking to and on behalf of Americans and in effect engaging in (one might say interfering in) the US policy process, is quite another.”

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Copyright Survives: Rethinking the Copyright-Contracts Conflict — In this forthcoming journal article, OSU Law professor Guy Rub examines court decisions dealing with the intersection of copyright and contract law to see what effect the 1996 ProCD v Zeidenberg decision had. Rub explains that the case “held that a contract that restricted the use of factual information was not preempted by the Copyright Act and therefore enforceable. The reaction among copyright scholars was swift and passionate. In dozens of articles and books, spreading over two decades, scholars cautioned that if the ProCD approach is broadly adopted, the results would be dire. Through contracts, the rights of copyright owners would run amok, expand, and in doing so they would invade, shrink, and possibly destroy the public domain.” After examining other court decisions, however, Rub reveals that “the doomsday scenarios scholars warned against did not materialize. The overall effect of contracts on the size and scope of the public domain, or over copyright law as a whole, seems minimal.”

Fox News Appears to Have Edge in Showdown That Could Curtail Sharing of Clips — This week, the Second Circuit Court of Appeals heard oral arguments in Fox News v TVEyes, on appeal after a district court held that a media monitoring outfit’s copying and distribution of television broadcasts was authorized by fair use. Eriq Gardner reports on the oral arguments, which were scheduled for thirty minutes but ended up lasting nearly two hours.

What Does a Motion Picture Film Still Photographer Do? A Conversation with Anne Marie Fox — “In my opinion, still photography is an art form and vital documentation of the entire production. It’s also a marketing and advertising tool. Sometimes stills become part of the collective conscience, evoking and inspiring generations to come. Film is a powerful medium and stills/key art imagery is its cousin. When you think about Breakfast at Tiffany’s, that still image of Audrey Hepburn holding her croissant and coffee cup while gazing into the window is like a distant memory. It’s strong, beautiful, iconic. Bud Fraker captured an exceptional moment. In other words, the artistic value of a great still can be priceless and have enormous longevity.”

The Trusted Notifier Program: Summary of One Year of MPAA Referrals — The Donuts domain name registry provides stats regarding its first year implementing a Trusted Notifier Program with film studios that addresses online copyright infringement.

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