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DMCA 'Safe Harbor' Up In the Air For Online Sites That Use Moderators (arstechnica.com)
"The Digital Millennium Copyright Act's so-called 'safe harbor' defense to infringement is under fire from a paparazzi photo agency," reports Ars Technica. "A new court ruling says the defense may not always be available to websites that host content submitted by third parties." The safe harbor provision "allow[s] websites to be free from legal liability for infringing content posted by their users -- so long as the website timely removes that content at the request of the rights holder," explains Ars. From the report: [A] San Francisco-based federal appeals court is ruling that, if a website uses moderators to review content posted by third parties, the safe harbor privilege may not apply. That's according to a Friday decision in a dispute brought by Mavrix Photographs against LiveJournal, which hosts the popular celebrity fan forum "Oh No they Didn't." The site hosted Mavrix-owned photos of Beyonce Knowles, Katy Perry, and other stars without authorization. LiveJournal claimed it was immune from copyright liability because it removed the photos. Mavrix claimed that the site's use of voluntary moderators removed the safe-harbor provision. The 9th U.S. Circuit Court of Appeals sided with Mavrix to a degree, but the court wants to know how much influence the moderators had on what was and was not published. With that, the court sent the case back to a lower court in Los Angeles to figure that out, perhaps in a trial. The highly nuanced decision overturned a lower court ruling that said LiveJournal was protected by safe harbor. The lower court said LiveJournal does not solicit any specific infringing material from its users or edit the content of its users' posts.
Shaking in their booties! Imagine if Twitter were held responsible for the terrorist shit they allow?
Question 1: Do you find celebrities interesting?
If "No", proceed to Question 2.
If "Yes", GTFO.
If each post has to be approved by moderators I can see the safe harbor being eroded, but if it's a post facto moderation then I don't see how that changes anything.
Last week I was like 'Don Rickles was still alive? Oh, bummer.' Now I'm like 'LiveJournal is still a thing? Oh, bummer.'
Good. This will be the end of "moderation" which silences one voice and amplifies another. This is a win for free speech. For freedom. If you love freedom you would also love anything that puts an end to this great injustice.
+5 insightful!
Oh, wait...
SA forums have unpaid mods that dictate what is allowable to them. This will kill the forums
Isn't removing infringing content at the request of the rights holders its-self an act of moderation?
You must do that in order to be considered a safe harbor, but having moderators means you don't have safe harbor protections.
Active moderation - along with many other things like 'karma', community moderation (*ahem*), filters, algorithms to select featured posts, and even named user accounts - introduces social pressures into online speech, heavily restricts the range of allowable opinions, and encourages a toxic, boring, self-reinforcing groupthink to develop.
Better IMO to follow the 4chan model where all posts are unedited, chronological, and anonymous, and nothing is deleted unless it is outright illegal (there posts are automatically pruned fast enough that DMCA etc. is a non-issue). Ideas are evaluated on their own merits without the subconscious ad hominem that glancing at the poster's name first brings, and unpopular opinions are at no inherent disadvantage to popular ones. The only small issue is that innocent snowflakes often aren't prepared for the full ramifications of hearing everyone's honest opinions.
No mods no masters
Hell yes, like the good old Slashdot troll threads.
Pretty soon the only thing we'll be able to post are pictures of our own penises.
that would be very very refreshing.
Time is needed to be made aware of infringing content, to make a judgment as to whether or not the content actually is infringing, and to take appropriate action. Not allowing for enough time is short-sighted, vindictive, and can only serve one purpose: To harm or even shut down the forum accused of allowing infringement, silencing all legitimate communication in the process as well.
Not noteable, IMO a rubbish article.
Its your loss! No one is going to care! Go ahead and tell us to wipe out your stuff. There will be a point where people don't care about your stuff.. Do you think we are going to run out of fantastic things to post? You should feel honoured that we pay attention to you at all!! ..And this will somehow stop us from making our own websites with humour and interest?? I don't think so! There are far more people just walking down the who are far more interesting, and better looking than the so called "famous" ones!!
Giving everyone equal weight in on private services isn't "freedom of speech", it's tyranny.
Learn to love Alaska
they would have a case if they self moderator did not remove and they did nothing. as it is and without detail except this article excerpt they did not need to because it was taken care of. they may also go the route that the right holders need to talk to each violator as apposed to the platform.
http://www.freestateproject.org/ and http://forum.shiresociety.com/ Migration of those who believe in freedom and liberty to New Hampshire for the purpose of establishing a free society (something we can largely do even within the confines of a criminal federal government as most of those in prison and there because of state and local government, and we need not dominate the state, just overly represent via activism and having the biggest voice more so than the opposing side), and we don't think "safety" should trump these beliefs. No victim no crime. Government should not utile violence, theft, fraud, and coercion against peaceful people. Copy"right" is coercion (threat of violence), violence, theft, and fraud. Nobody has lost anything when a copy is made (except for maybe in the case of VHS tapes back in the day) and while tipping your waiter is ethically correct one should not be entitled to something just because it's the ethically correct thing to do. Government needs to stay out of regulating morals and stick to real crimes: Violence, theft, fraud, coercion to whatever extant we continue to have government. And they should not be stealing from the people (taxes) for that which the people have no choice to reject. You should not be able to vote in violence under any system of government.
First, LiveJournal somewhat recently decided to quit the sharade that they were a US company and move the business back to Russia. So I'm surprised there is any entity left here to sue.
Second, ONTD is just a community on LJ, not run by LJ staffers (who are almost all in Russia). So these moderators are themselves just users of the system, not some official LJ moderation team.
(LJ does have a team that deals with complaints from users and legal issues, but that is a reactive function.)
All government is tyranny of the sovereign. You slaves are just arguing over who is the master.
See how the so-called "rightsholders" squeeze and squeeze... try to get a little bit more, and a little bit more, and a little bit more every time? And every time they get it? They learned from SOPA/PIPA. Don't go for the big bang. Go for it step by step. If you told Europeans 20 years ago that the Copyright Industry would have the power to block you at the ISP level from accessing websites (except for the Germans, they have a very strong Copyright Industry that made them pay fees on computer printers since forever since you "might print out a book with it") they would have said you were completely insane. Yet here we are. Soon the US will be on the block "internationals standards" etc. that they put in place themselves through endless, tireless lobbying and litigation.
When the copyright term is "forever minus a day", live every day like it's the last.
I moderate on a website that does allow moderators to edit user posts - I wonder if that opens them up to additional exposure in terms of images posted.
"There is more worth loving than we have strength to love." - Brian Jay Stanley
There's not much to worry about from the DMCA unless the terrorists are committing copyright infringement.
That said, it's not impossible for the two to intersect, as the infamous photoshop of the muppet Bert with Osama proved. It started as a joke online and accidentally ended up on signs by people actually supporting Osama that then made it into the news.
Just turn moderation off - completely. No issues there at all :-)
Without order, anarchy merely distills to warring feudal monarchies. There's no way to preserve freedom for all if by allowing all freedoms you neglect to protect the freedom of the meek from being stolen by the bold.
It's just a question like this:
Do the moderators function like editors and only allow a few posts? If so, safe harbor does not apply.
Do the moderators only ban posts for obvious problems like nudity, swear words, etc.? If so, safe harbor does apply.
Basic question: Do the moderators function like editors, that choose posts? If they chose a post to display, then they contributed to copyright infringement of that post.
If they just pick out swear words and stuff, they did not "select" that post and thus did not contribute to copyright infringement.
It's not that sites that use moderators can lose their safe harbor protection, but rather sites that give too much direction as to how to moderate AND where moderators exercise prior restraint such that no post goes up without having been reviewed by a moderator, can cause said moderators to be viewed as agents of the sites they moderate for rather than uninvolved third parties (and hence the Safe Harbor no longer applies).
In this case, moderators for a Livejournal community knowingly used photographs that were clearly watermarked such that any reasonable person would know they were copyrighted and they had no fair use rationale for posting them. Because Livejournal provides such explicit direction to moderators, and these moderators held posts for review, there is no way they couldn't have known what they posted, and they thus appeared to do so on behalf of Livejournal.
Communities that don't want to run into this problem simply need to avoid giving too much direction to moderators (since that could be viewed as exercising arbitrary control over them such that they are your agents), don't exercise prior restraint or otherwise hold comments for review, and remove infringing content when you become aware of it.
If you want the real story without the hyperbole and clickbait, try reading the actual fucking ruling.
Just like unregulated corporations, then.
I tend to agree.
The 'safe harbor' provision essentially says "we're a provider of a service, we can't be held responsible for the people that use the service; their actions are their own".
Once a site DOES take responsibility for the posts - filtering, banning, controlling - then they logically would become responsible for the content therein: if the leave it without deleting/moderating it, one could argue that's tacit approval.
-Styopa
Seems like you're comparing anarchy to utopia rather than reality. The alternative to freedom/anarchy in the real world isn't "freedom for all", it's authoritarianism for everyone. Governments are very good at maintaining "order" through violence, incarceration and mass murder, but they've never established "freedom for all".
Even if anarchy meant small scale warfare between rival clans, it looks extremely appealing when compared to the horror of government.
>> There's not much to worry about from the DMCA unless the terrorists are committing copyright infringement.
> nothing near so bad as copyright infringement.
DMCA stands for Digital Millennium COPYRIGHT Act. It specifies the procedure service providers must follow to have safe harbor from copyright claims. So GP is absolutely correct, beheadings don't come under the Copyright Act. Terrorism falls under different laws.
There are many images on the web, and tons of source code, for which I don't know the license. Therefore I don't use them, since I don't know whether I'm allowed to or not. (Or I first find out what the license is, such as by asking.) That's the general rule - if you don't know whether you are allowed to use some content in a particular way, either find out, or don't use it. As a general rule, that's more or less reasonable.
If the editor of a newspaper doesn't know the license status of a particular image, they generally won't run that image in their newspaper. If an editor / moderator of a web site doesn't know if an image is licensed for the site's use, they CAN simply not allow the image to be posted to the site - they are already approving or rejecting the posting anyway. The legitimate question is "given the exact wording of the law (DMCA) as applied to the particular site in question, do the editors/moderators have a role similar to the editor of a newspaper?" (Again, as defined by the particular wording of the law.) This case isn't about the concept in general, but about the particulars of this specific case.
People who volunteer to be editors / moderators may indeed be unable to effectively serve as editors. In that case, perhaps if the site wants editors, they should pay editors, or else not have them. It's been known since at least 1997 when I started doing web sites professionally that weak moderation / editing is risky. Once you have staff deciding what should be posted, you start to become responsible for those decisions. (Including unpaid staff).
> Time is needed to be made aware of infringing content, to make a judgment as to whether or not the content actually is infringing, and to take appropriate action.
In this case, Live Journal posts submissions after a team of editors / moderators have reviewed and approved submissions. They actively approved it before it was published on the site, and would have seen the watermarks on the images.
Giving everyone equal weight in on private services isn't "freedom of speech", it's tyranny.
Well, I considered it anarchy. Usenet, which was the wild west, and unwitting experiment of unfettered free speech, showed the tragedy of the commons effect. The trolls, flamers and internet kooks killed it pretty well. The response to any complaint was "Use a killfile". But after you spend more time adding people to a killfile than reading and participating, you just give up and go some place else.
And usenet died.
And that folks, is why we have moderation. I moderate several groups. I'm pretty lax for the most part, allowing a fair amount of topic drift. But if someone gets offtopic political or religious, or starts talking shit, they are gone. If they don't like it, they can either grow up or GTFO,
If I have a few people getting pissed at me, I know I've done my job.
The shepherds did so well protecting the flock that the sheep no longer believed that wolves existed.
Also, in this case the watermarks on the images provide a pretty strong hint that the are professionally produced photos and the owner cares about their copyright. The editors / moderators would have seen the watermarks before approving the submission.
Move moderation to a different subsystem / different people. Ideally, moderation should be a user-applied filter anyway, not a website-applied filter. Think about how you would solve this kind of problem with Usenet or email.
Alas, I can't think of how to do this in in a classical "webby" way. Web discussion forums were sort of a backlash against the advanced tech of Usenet. People didn't want to do it themselves, and other people wanted more control over what other people see (both to shut out other voices, and to promote ads).
Every community has standards. If your behavior or opinions are utterly rejected, you probably ought to find another community.
Sometimes a lone actor can change a community for the better, but most trolls and outcasts are rejected for being odious, disrepectful, or ignorant.
Meta-moderation is important to prevent abuses, which some sites notably lack. I have seen brief instances of unmoderated commentary on the internet though, and even bad moderation is better than that.
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According to the latest ruleset, this post should be modded as Vorpal Flamebait +5.
I have seen dozens of executions go through legal review over the year where guidance has clearly been to have passive (content unaware) human intervention and only moderate based on user activity or owner filings.
Having an employee or human tasked with reviewing content for suitability inherently seems to reduce the DCMA protections as it raises the operator's knowledge/action expectation of each piece of content.
Usenet died when ISPs stopped providing readers and servers for free. I know I stopped when I switched ISPs to one that didn't offer free servers. Paying $5 a month for a pay server just wasn't worth it. Though I had bought Agent, and didn't need to buy another client. I moved to SBC (back before it was SBC) and didn't have a choice of providers, and gave it up. The free services (Google's free usenet access) came too late for most to care. I looked it up, and some of the regulars were still around, but not many kept up with it. Just a few that had had jobs with servers (mainly those working in education). So there was no reason to go back. The number of trolls wasn't an issue. Before the endless September, there weren't many trolls anyway. When everyone on Usenet was on a university server, there wasn't any real anonymity. So a troll could be tracked down in many cases. Noise isn't trolls. The endless non-troll newbs was as bad or worse than the trolls.
Learn to love Alaska
The number of trolls wasn't an issue.
As a person who was and still is involved in Usenet on a moderator level, I gotta say we have a remarkably different perspective on it.
The shepherds did so well protecting the flock that the sheep no longer believed that wolves existed.
On rec.autos.driving, the only "trolls" weren't trolls by the normal definitions, but were idiots. There would be a few true trolls, but most would simply ignore them. Trolls increased after Eternal September, but they quickly lost interest.
Learn to love Alaska