Thursday, March 15, 2018
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Ninth Circuit:
‘Safe Harbor’ Provision Protects Infringing Website
Majority of Three-Judge Panel Says There’s No Liability for Postings by Third Parties; Dissenting Judge Says There’s Triable Issue as to One Requirement of Act
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday affirmed summary judgment in favor of a pornography website that stored 33 clips from the plaintiff’s copyrighted movies without its consent, rejecting the contention that defendant Motherless.com exercised such tight control over the content that it, not third party users, were responsible for the posting.
Judge Andrew J. Kleinfeld wrote the majority opinion, in which Jacqueline H. Nguyen joined. Judge Johnnie B. Rawlinson dissented.
At issue was the applicability of “safe harbor” provisions of the Digital Millennium Copyright Act which provides a defense where there is a copyright infringement “by reason of the storage at the direction of a user,” and various requirements are met.
Plaintiff Ventura Content, Ltd., which sued Motherless, Inc. and owner Joshua Lange, argued Lange, himself, uploaded much of the material, not a third-party user. Kleinfeld responded:
“Lange did upload thousands of pictures and videos from his old site, Hidebehind.com, when he first established Motherless in 2008. However, those uploads amount to only 6% of what the site now carries. He has not uploaded any material to the site since he started it with his old material. Lange and his contractors did not upload any of the 33 clips over which Ventura claims copyright ownership.”
Not Passive Recipient
Ventura asserted that Motherless.com—which contains more than 12.6 million still shots and videos, mostly pornographic—is not merely a passive receptacle of postings, over which it exercises no control. Rather, it argued, the evidence shows that Lange reviewed all material to reject child pornography, bestiality, and material that infringes copyrights.
Kleinfeld said that Lange bars child pornography because it’s illegal to post it and bars bestiality because it’s illegal in some European countries and he has European advertisers who expressed concerns over it. The jurist commented:
“We find it counterintuitive, to put it mildly, to imagine that Congress intended to deprive a website of the safe harbor because it screened out child pornography and bestiality rather than displaying it.”
‘Most Popular’ Category
Ventura further contended that Motherless was housing material at its own direction by virtue of placing some of it in the “Most Popular” section. Kleinfeld was unpersuaded, remarking:
“The users post what they post, popular or not. Motherless does not screen out material for relatively low popularity, and of course most postings do not fall within the ‘Most Popular’ category. Yet there they are, up on the site, because the users put them there.”
Ventura insisted that Lange had to have been aware that its videos were protected by copyright because of the professional quality. Noting use of a shaky camera, Kleinfeld question the proposition that they looked professional.
He found no triable issue of fact in connection with any of the other requirements for a “safe harbor” defense.
Rawlinson’s Dissent
Rawlinson disagreed, declaring:
“From my reading of the record, a gargantuan issue of fact was raised by Ventura regarding Motherless’/Lange’s compliance with the requirement that the service provider adopt, implement, and inform subscribers and account holders of the policy providing for termination of repeat infringers to merit safe harbor protection from copyright infringement.”
She went on to say:
“The majority concedes that Motherless/Lange has adopted no written or publicized policy that may be used to instruct regarding the expulsion of repeat infringers….The majority excuses this deficiency by noting that ‘there are no employees to instruct.’…However, there is at least one independent contractor who, together with Lange, reviews all the photographs and videos before they are uploaded to the website….If, as the majority concedes, there is no written policy to instruct the independent contractor regarding repeat infringers, at a minimum a material issue of fact is raised regarding compliance with that requirement of the safe harbor provision.”
Kleinfeld countered:
“…Motherless has a written policy of terminating repeat infringers. On its page entitled ‘DMCA Notice & Takedown Policy and Procedures,’ Motherless said that ‘[it] is the firm policy of the [site] to terminate the account of repeat copyright infringers, when appropriate.’
“The details of the termination policy are not written down. However, the statute does not say that the policy details must be written, just that the site must inform subscribers of ‘a policy’ of terminating repeat infringers in appropriate circumstances. Motherless consists only of Lange and a few independent contractors, and Lange alone determines when to terminate repeat infringers. A company might need a written policy to tell its employees or independent contractors what to do if there were a significant number of them, but Motherless is not such a firm.”
The case is Ventura Content, Ltd. v. Motherless, Inc., Nos. 13-56332 and 13-56970.
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