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.

Comments

Re:Circular

[Garfong]

It looks like what makes this case different from typical moderation is "Oh No they Didn't" would review every submission before posting them, whereas typically submissions are automatically posted but can be taken down by moderators. So as I understand it the typical default approve moderation is fine, it's just this require approval before posting moderation which may be suspect.

Similarly I imagine sites like reddit where the moderators are also users is also fine, regardless of the method, since the company itself is (usually) not involved.

Re:Only if it's a whitelist

[AK Marc]

Slashdot has moderators, and also a policy of non-moderation. There has only been one post taken down, and that was after a court order (and battle). So there's a long history of non-moderation, though it's "possible". So should slashdot be considered "moderated" or "unmoderated" under this? What about sites that explicitly do no moderation until after complaints, but then are quick to respond and hands-on in their moderation?