On June 22, 2015, ARL joined an amicus brief of the Computer & Communications Industry Association, the American Library Association, the Association of College and Research Libraries and the Electronic Frontier Foundation in the case Mavrix Photographs v. LiveJournal, currently pending in the Court of Appeals for the Ninth Circuit, supporting the respondent, LiveJournal.
The case involves a LiveJournal blog, Oh No They Didn’t!, a community blog involving reader submissions about celebrity gossip and pop culture. These submissions include celebrity photos, including sets of photos from Mavrix. Mavrix sued LiveJournal (without first sending any takedown notices) and LiveJournal responded by removing the photos and terminating two users as repeat infringers. In the district court, LiveJournal prevailed under the Digital Millennium Copyright Act (DMCA) safe harbor rules because it did not have actual knowledge of infringement, nor did it have “red flag” knowledge of infringement (that LiveJournal should have known). Mavrix appealed the case to the Ninth Circuit.
The amicus brief points out the importance of the DMCA safe harbors for the amici parties, including for libraries specifically:
The DMCA safe harbors have also been extremely helpful to the library amici in fulfilling their mission of providing their users with access to information. Libraries act as “service providers” within the meaning of 17 U.S.C. 512(k)(1)(A). Libraries are the only source for real Internet connectivity and Internet-ready computer terminals for many Americans . . . The Section 512(a) safe harbor for “mere conduits” has enabled libraries to provide Internet access without the specter of liability for onerous copyright damages because of infringing user activity.
Libraries also operate websites that host user-generated content and prepare directories that link users to other websites. The safe harbors in Section 512(c) and (d) shelter libraries from liability for infringing activity by third parties. Any new restrictions on the availability of the DMCA safe harbors could have an adverse effect on the ability of libraries to deliver a critical service to underserved and other user communities.
The brief points out that that while service providers do not have an obligation to look through user-submitted content for infringements, the DMCA also does not discourage monitoring. Many service providers review content for illegal or objectionable material that violates the terms of service agreements. Such moderation does not result in the loss of safe harbor under Section 512(c) which addresses safe harbors for “Information Residing on Systems or Networks At Direction of Users.”
The brief also notes that, absent actual knowledge of infringement, “red flag” knowledge is a high bar. It notes that just because a user submits content, such as a photograph, that exists elsewhere online does not constitute a “red flag” that the content is infringing. Additionally, “Holding online service providers unexpectedly liable for the acts of their users, in contrast to the legal clarity Congress deliberately and presciently provided in Section 512, would be deleterious not only to Internet commerce, but also to free speech online.” The full brief is available for download here.