Mavrix Photographs v. LiveJournal: An Important Step in Furthering the Anti-Piracy Movement in the Millennium Age
A recent amended opinion to the Mavrix Photographs LLC v. LiveJournal, Inc.[1] case is said to “benefit copyright owners and provide better guidance to internet service providers [to avoid copyright infringement].” [2] Mavrix Photographs dealt with situations under which social media websites and other internet service providers (ISPs) can be held liable for copyright infringement for content submitted by users. [3] The amended opinion removed language that could have posed a problem for both copyright owners and ISPs, as it could have had unintended and counterproductive effects. [4]
In Mavrix Photographs, the celebrity photography company Mavrix sued LiveJournal, a social media platform, for posting twenty of its copyrighted photographs on its website Oh No They Didn’t!. [5] The photos at issue were submitted by users of the websites but were reviewed and approved by the website creators before they were publicly posted on the site. [6] In the case, the Ninth Circuit addressed the issue of whether LiveJournal was immune from liability under the “safe harbor” of the Digital Millennium Copyright Act (DMCA). [7]
The Digital Millennium Copyright Act was passed by Congress in 1998 in hopes of addressing digital piracy due to the rapidly changing spheres of technology and communications. [8] Specifically, the DMCA was intended to guard against piracy given the unobstructed access to copyrighted works via the internet, while also addressing the concern that ISPs could be held liable for the infringing activities of their users. [9] To do so, the act incentivized ISPs to keep both infringing content and repeat infringers off their services, by granting them immunity from legal liability. [10] The limitations on liability, or “safe harbors” balanced the value of technological growth and innovation, with authors’ and other content creators’ right to protect their works. [11] However, in order to benefit from the safe harbor, the providers must comply with the statute’s requirements, one of them being providing a showing that it did not financially benefit from infringing activity that it had “the right and ability to control.” [12]
In its original opinion, the Ninth Circuit remanded the case back to the district court to determine whether LiveJournal could be liable for the screeners’ acts of making the photos public– an overall decision which did not change in the amended opinion. [13] However, the portion of the original opinion that interpreted “the right and ability to control” requirement of the safe harbor provision, posed a problem for both copyright owners and ISPs. [14] The Court noted that tools that automatically block any post, i.e., automated content identification technology that is used by many online platforms to identify and block potentially infringing content, can cause those platforms to lose their protection under the safe harbor. [15]
In its new opinion, the Ninth Circuit removed this language, as it dis-incentivized ISPs from using automatic content blocking software and taking other anti-piracy measures. In other words, the original decision was contrary to the purpose of the DMCA. Therefore, the ultimate result of the amended opinion clarifies ISPs’ and copyright holders’ rights and liabilities under the DMCA – an important step in furthering the purpose of the anti-piracy act.
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