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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...
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.
Pretty soon the only thing we'll be able to post are pictures of our own penises.
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
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
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 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.
So do lots of open-source software projects. If you're not politically correct, out you go.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
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
There's not much to worry about from the DMCA unless the terrorists are committing copyright infringement.
Just rapings, beheadings, crucifixions, setting people on fire...nothing near so bad as copyright infringement.
We don't have a state-run media we have a media-run state.
>> 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.
Yeah, that's a little weird. LJ is little more than the web host here, and moderators are not employed by LJ. This means that ONTD might have some legal liability as a group, but not LJ - even if they provide the moderation capability.
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.
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