Kudos to LiveJournal and ohnotheydidnt
Photo agency Mavrix, who were called a "copyright troll" during a lawsuit against Buzzfeed, just lost a lawsuit against LiveJournal over photos posted on OhNoTheyDidnt, one of LiveJournal's remaining successful communities. ONTD, as it's commonly known, has nine moderators, including one who is also a LiveJournal employee.
The issue involves photos that were posted not by ONTD themselves, but by community members, and at least one blog post notes that no explanations were given for why Mavrix didn't go through the DMCA takedown process, which is what LJ provides for anyone who believes that someone else has infringed on their work on any journal or community on LJ.
Because Mavrix didn't go through the DMCA process and instead simply sued LiveJournal for hosting infringement, their claim was thrown out of court; the court said:
LiveJournal ... provides an online platform and makes the platform available to members of the public to create their own individual or communal blogs. 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. Consequently, LiveJournal is entitled to the protection of the Digital Millennium Copyright Act (“DMCA”) safe harbor…
It's a solid cast for all online communities that allow people to post works on their sites, including twitter, snapchat and tumblr staff, because there haven't been many DMCA cases that have gone this far through the courts - they usually either settle for some sum, or the content is removed and the plaintiff is thus satisfied. The DMCA process has been around for almost twenty years, and as explained in this case, it obligates the copyright owner to notify a site hosting a claimed infringement about said infrigement; if the site owner/moderator doesn't take the content down in a reasonable amount of time (even if there are grounds for the content to be found noninfringing) the copyright owner can sue (although they should lose if the use falls under Fair Use, as Fair Use is a lawful use of a copyright)).
But in this case, Mavrix didn't notify LJ or ONTD; they just sued. And the court said that they're not allowed to do that, and therefore, any claim against LJ or ONTD is barred. How does this impact community moderators and site owners on forum-sites, or sites like tumblr (and LJ) where users can submit posts that are approved by a moderator?
It says that even where a moderator approves the post, any infringement is by the individual who submitted the post.
That all posts had to be approved by a moderator before becoming visible on the site does not disqualify LiveJournal under the “broad” statutory language of the DMCA safe harbor for “infringement . . . by reason of the storage at the direction of the user.”
The court also said that users, not LJ, select the content to be posted on the site, and make the posts themselves. Even though LJ's site/platform can be used by users to share infringing content, "LiveJournal does not solicit any specific infringing material from its users or edit the content of its users’ posts" and therefore, LJ does not have high levels of control over the posts made on ONTD or other LJ comms.
LiveJournal has done other sites, platforms, communities, fandomers, news sites and forums a great service by seeing this lawsuit through. Mavrix has a pattern of using a threat that sites owe it hundreds of thousands in damages if one of their users - or even they - post a single photograph owned by one of Mavrix's paparazzi, and as Gigaom wrote two years ago:
The legal dilemma is a result of the very big stick that the law gives to copyright owners — the right to seek damages of up to $150,000 for each single infringement. This penalty has its place as a nuclear option of sorts to stop or deter serial infringers. Unfortunately, some image owners are brandishing the nuclear option against everyone — from small blogs to careless interns (who may have been responsible for the BuzzFeed shots) — without taking any account of the actual harm done by the copyright infringement. Instead of a simple request to take the image down (which most people would comply with), we get a legal train wreck.
We have clients who have dealt with these sorts of claims from agencies that rep paparazzi, and it's terrifying for small sites. While photographers do deserve reasonable license fees for their work, the nuclear option gives them an opportunity to threaten to basically bankrupt a site, even one as large as LiveJournal.
We'll keep an eye on what, if anything, happens with this case, and any similar actions by Mavrix or other agencies.