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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?
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.