Since 1998, the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) have provided protections to online service providers (OSPs) by limiting their liability for copyright infringement if certain requirements are met. These protections have paved the way for the innovation and expansion of internet businesses, as OSPs can avoid potentially crippling liability where they have taken reasonable steps to prevent infringing activity originating from third parties. A recent U.S. Court of Appeals for the Ninth Circuit decision, Mavrix Photographs v. LiveJournal, No. 14-56596, — F.3d —, 2017 WL 1289967 (9th Cir. April 7), has important implications for OSPs relying upon Section 512(c) of the DMCA, which provides safe harbor to OSPs that store infringing material.

In 2013, celebrity photography company Mavrix sued LiveJournal for copyright infringement after its photographs were posted by third-party users on a popular online celebrity gossip and pop culture community called “Oh No They Didn’t!” (ONTD!) hosted by LiveJournal, a blogging platform. LiveJournal uses “community moderators” to screen, accept and reject posts. In 2014, the district court granted summary judgment in its favor, finding that it sailed into Section 512(c) safe harbor, which protects OSPs from liability where the allegedly infringing content appears on its service “by reason of the storage at the direction of a user,” if the OSP: (1) lacks actual or “red flag” knowledge that the material is infringing or “acts expeditiously to remove, or disable access to, the material” once discovered; (2) does not receive a financial benefit directly attributable to infringing activity that it has the right and ability to control; and (3) “expeditiously” removes or disables access to infringing content upon notification from the copyright owner.

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