Facebook, Google Challenge Ninth Circuit's LiveJournal Decision

The Computer & Communications Industry Association (CCIA), joined by Google, Facebook and others, has asked the Ninth Circuit Court of Appeals to review a panel decision they say threatens liability protections for user-generated content online.

That came in an amicus brief filed with the court.

A three-judge panel of the Ninth Circuit overruled a district court and said that the Digital Millennium Copyright Act's safe harbor from copyright infringement for websites that host user-generated content may not apply if that content is moderated by the site, in this case social media site LiveJournal.

The DMCA protects online web content providers, or networks, against infringement claims for content stored at the direction of a user on those sites or networks. 

CCIA et al. are concerned that the panel decision suggests that unless the activity is confined to improving the content's accessibility, manually reviewing user content before allowing it to be posted could disqualify it as fitting the DMCA safe harbor definition of posted at the direction of the user, which would cast "a cloud of uncertainty" over the DMCA and its protections.

CCIA et al. are also concerned that the mere act of reviewing, including attempting to prevent infringing material, could be read as having the "right and ability to control infringement" and thus "further jeopardize" safe harbor status.

The panel decision turned on LiveJournal's volunteer moderators of the content "led" by a LiveJournal employee. The panel reversed a summary judgement for LiveJournal and remanded the decision back for trial, saying there were still "genuine factual disputes" about whether the moderators were acting as agents for LiveJournal.

"The panel’s decision threatens to expose online services to a possible loss of DMCA protection simply because they make efforts to screen content that users submit for posting," they told the court. "If the panel intended that result, its decision is profoundly mistaken, and it will harm not just service providers and their users, but copyright owners as well. If not, the panel has created unnecessary confusion. Either way, the panel’s ruling in this case will vex parties and lower courts for years to come unless it is corrected through rehearing."

The Electronic Frontier Foundation is hoping the court agrees to rethink the panel's decision.

"The DMCA does not forbid service providers [in this case that refers to websites] from using moderators," EFF said when the panel decision was handed down April 7. "Indeed, as we explained in the amicus brief (PDF) we filed with CCIA and several library associations, many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.