Monday, April 10, 2017
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Court Revives Suit Over LiveJournal’s Use of Celebrity Photos
By KENNETH OFGANG, Staff Writer
Triable issues remain as to whether a social media website violated the law by allowing copyrighted photographs to be posted, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court reinstated a suit brought by Mavrix Photographs, a so-called “paparazzi shop” specializing in pictures of celebrities taken in tropical locations.
Mavrix claims LiveJournal should be held liable for posting 20 of its photographs without permission. LiveJournal argued the pictures were posted by users, not by its employees, and thus fall within the Digital Millennium Copyright Act’s safe harbor provision.
U.S. District Judge Cormac Carney of the Central District of California sided with LiveJournal, concluding that the site “moderators” who decide which submissions make it on to the webpages are users whose actions are not attributable to LiveJournal for purposes of 17 U.S.C. §512(c.)
The statute precludes imposing monetary liability on a “service provider…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.”
However, the protection is available only if the service provider lacks actual knowledge of infringement, receives no direct financial benefit from infringing activity, and expeditiously removes or disables access to infringing material upon notice.
LiveJournal allows users to create “communities” in which they discuss themes of common interest. The communities are overseen by three types of unpaid administrators—“moderators” who review posts to ensure compliance with the site’s rules, “maintainers” who review posts submitted by users, and may delete those they find inappropriate and remove moderators and users from the community, and “owners.”
Each community has one owner, who has the authority of a maintainer, with the additional authority to remove maintainers.
Popular Site
The litigation resulted from the activities of “Oh No They Didn’t,” or ONTD, by far the most popular of LiveJournal’s communities. The site features breaking celebrity news; the disputed photographs included one of Katy Perry in a bikini and another featuring a pregnant Beyonce.
ONTD’s popularity led LiveJournal to assert greater control in hopes of generating advertising revenue. As a result, a moderator, Brendan Delzer, was hired as the “primary leader” of the site on a paid and fulltime basis, the company explained.
Carney, in granting summary judgment on the basis of the safe harbor defense, said LiveJournal “merely provides an online platform and makes the platform available to members of the public to create their own individual or communal blogs.”
He added:
“Before this lawsuit was filed, LiveJournal did not know of the allegedly infringing posts and was not aware of ‘red flags’ of specific infringement; it did not have the right or ability to control such infringing activity; and upon learning of the posts it promptly removed them from the site.”
Panel Opinion
Judge Richard A. Paez, however, in his opinion for the Ninth Circuit, said the district judge erred in focusing on the submission, rather than the posting, of the photographs, and in declining to apply the common law of agency. The critical issues, he said, are who had the authority to screen and post submissions and whether those persons were agents of LiveJournal.
The plaintiff, he continued, presented sufficient evidence of an agency relationship between the moderators and LiveJournal to survive summary judgment. “Although LiveJournal calls the moderators ‘volunteers,’ the moderators performed a vital function in LiveJournal’s business model,” the judge wrote.
There is, Paez said, evidence that LiveJournal gave express directions to moderators as to how to screen submissions, creating triable issues of fact as to whether they had actual authority over whether the Mavrix photographs could be posted. In at least one case, he noted, a user whose post was removed pursuant to a takedown notice complained to LiveJournal that he followed the community’s standards and cleared his post with the moderators.
Such reliance, Paez wrote, creates genuine issues as to whether the moderators were invested with apparent authority to act for the company.
The judge went on to say that while Mavrix may have harmed its claim that LiveJournal had actual knowledge of infringement, by suing without first serving takedown notices, the notices are not an absolute requisite. The plaintiff may, he said, depose the moderators to determine their subjective knowledge.
The case of Mavrix Photographs, LLC v. LiveJournal, Inc., 14-56596, was argued in the Ninth Circuit by Peter Afrasaibi of One LLP for the plaintiff and Wayne Mitchell Barsky of Gibson, Dunn & Crutcher for the defendant.
Copyright 2017, Metropolitan News Company