
LiveJournal loses DMCA safe harbor protection [pdf] - pdkl95
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/04/07/14-56596.pdf
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wahern
They didn't lose protection. They simply failed to establish such protection
at the summary judgment stage.

    
    
      In light of the summary judgment record, we conclude
      that there are genuine issues of material fact as to whether
      the moderators are LiveJournal’s agents. The factual dispute
      is evident when we apply common law agency principles to the
      evidentiary record.
    

DMCA safe harbor is an affirmative defense. An affirmative defense means that
the defendant bares the responsibility to prove the defense. That can be very
hard to do at the summary judgment stage when there are legitimate factual
issues in dispute, as there are here.

The central issue here is that one of the moderators was an employee of the
defendant. Notably, the moderators prescreen and curate material for
publication. Furthermore, there was conflicting testimony about the role of
the employee-moderator and his relationship with the other moderators, such as
the extent to which he directs and guides them.

The only way the judge managed to discard the case at the summary judgment
stage was by holding that the common law of agency didn't apply, not even with
regard to the employee-moderator alone. (Which is to say, by holding that the
factual dispute about the employee-moderator's knowledge, role, and
relationship was irrelevant.) I haven't read his opinion so I have no idea how
he arrived at that holding, but on its face it seems unsupportable.

~~~
pdkl95
> They didn't lose protection.

You've being overly pedantic.

> They simply failed to establish such protection at the summary judgment
> stage.

Of course. They lost the ability to use the standard affirmative "safe harbor"
defense that many internet services currently rely on. At least one copyright
lawyer believes[1] this may have significant implications for other places
that moderate user content. Reddit and YouTube were specifically mentioned as
_possibly_ affected due to their own appointment of moderators.

Obviously, the details are decided in the retrial. However, the previously
mentioned lawyer[1] suggests this puts LiveJournal in a poor position that
encourages them to settled out of court, leaving the practical utility of safe
harbor uncertain when appointed moderators are involved.

> DMCA safe harbor is an affirmative defense.

Yes, that was a key part of opinion.

> an employee of the defendant

Agent of the defendant, which includes non-employee unpaid positions.
Regardless, I agree that the status of the moderators is indeed the central
issue.

> on its face it seems unsupportable.

I agree, and so did the 9th circuit appellate court. That district covers
YouTube and a lot of other internet businesses, which ads a lot more
uncertainty for any of those businesses that moderate content and might be
seen as having an agency relationship with their moderators.

[1]
[https://www.youtube.com/watch?v=R48QHBakioI](https://www.youtube.com/watch?v=R48QHBakioI)

~~~
dragonwriter
> You've being overly pedantic.

No, he's pointing out an enormous distinction.

> They lost the ability to use the standard affirmative "safe harbor" defense
> that many internet services currently rely on.

No, they retain the ability to use it. It's just that, at summary judgement
(which views all disputed factual questions in the light _least_ favorable to
the party seeking summary judgement) their _success_ in using that defense has
not been established.

Which means that the elements of the defense will need to be established at
trial, which is the norm for an affirmative defense.

> Obviously, the details are decided in the retrial.

Trial, not retrial. There was no first trial; the district courts (now
reversed) summary judgement decision occurred before trial.

> That district covers YouTube and a lot of other internet businesses, which
> ads a lot more uncertainty for any of those businesses that moderate content
> and might be seen as having an agency relationship with their moderators.

Lots of sites with user-submitted content that have moderators engage in
reactive moderation; LiveJournal, with ONTD, had moderator pre-clearance of
content for posting. Even if moderators are agents, if they aren't approving
content to be posted, their existence doesn't raise the issue that the content
may be posted at the direction of the site owner (via an agent) rather than
the outside user. It might raise issues of red-flag knowledge, but without
blanket pre-clearance of the type LiveJournal practice, even if the content
itself has somethibg like watermarks that would make a strong case for any
viewer having red-flag knowledge, and the site has moderators that are
unmistakably agents, it'll be much harder to make the case that the site had
red-flag knowledge.

LiveJournal really seems to be in different position here than many sites with
moderators.

