Potential chilling effect on using moderators

Mr Lucky

Well-known member
Wasn't it already established years ago in the EU that any moderated forum can be held liable for uploaded and/or embedded copyright material?
 

Alfa1

Well-known member
It seems countries around the world are getting tough on forum moderation:
Germany bill imposing €50M fine for failure to remove online hate crime, fake news fast enough
EU court: pay damages for ineffective Post Report moderation system.
Google will let users flag offensive content

Related feature request:
Better functionality to report and moderate illegal hate speech

The aforementioned feature request can be used to prevent copyright cases, because it put copyright holders in the position to put posts in the moderation queue and thereby remove it from public view themselves.
 
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Anthony Parsons

Well-known member
Soon you will need a legal disclaimer on the upload button when pressed each time, ensuring a person takes responsibility for any content they upload that is not their own, and such content will not be subject to moderation and all responsibility placed upon the uploader themselves. Argh!

Good find by the way.
 

n00bsaibot

Well-known member
I thought posting copyrighted pictures for discussion is fair use? LOL I've just started image proxying to keep all my pages HTTPS....
 

Mr Lucky

Well-known member
Soon you will need a legal disclaimer on the upload button when pressed each time, ensuring a person takes responsibility for any content they upload that is not their own, and such content will not be subject to moderation and all responsibility placed upon the uploader themselves. Argh!
This is not really any different to such a disclaimer in the terms and conditions.

However I doubt that a court would recognise anything like that as a defence against the implicit allowing of copyright material by not deleting it via moderation.
 

MikeMpls

Well-known member
I'm surprised that anything at LiveJournal is that much alive. MySpace and later Facebook killed most of it.

I've had an LJ account since 2004 and have participated in several communities there. All were created and run by members. I have also read the 9th Circuit opinion, so before you jump on me, please catch up on your reading if you have not already read it.

Before I read the 9th Circuit opinion, I took at look at the ONTD community's bio/rules page. Everything looked like a normal volunteer-run LJ community with an owner and team of volunteer moderators, except for one thing: The owner "Pinky" is obviously an anonymous profile, created in 2010 and with only one journal entry ever (but with thousands of comments made), and listing no friends, communities joined, communities followed.

On page 7 of the 9th Circuit decision, we read:

When ONTD was created, like other LiveJournal communities, it was operated exclusively by volunteer moderators. LiveJournal was not involved in the day-to-day operation of the site. ONTD, however, grew in popularity to 52 million page views per month in 2010 and attracted LiveJournal’s attention. By a significant margin, ONTD is LiveJournal’s most popular community and is the only community with a “household name.” In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it.

In other words, LiveJournal appears to have rigged a friendly takeover of ONTD and installed one of their employees, Brendan Delzer (likely user "Pinky"), so as to be able to capture ad revenue from the community.

And on page 13:

Mavrix, relying on the common law of agency, argues that the moderators are LiveJournal’s agents, making LiveJournal liable for the moderators’ acts. The district court erred in rejecting this argument.

For most LJ communities, this would not be a good assumption. In the case of ONTD, however, the nominal "owner" of the community is an LJ employee (agent), and that employee has the power to appoint other moderators (sub-agents).

Regarding agency under our common law, principals are liable for the actions of their agents and sub-agents. It's a risk that you assume (often unknowingly for most people) whenever you hire or appoint someone to act on your behalf.

Regarding agency the court concludes on page 15:

We therefore have little difficulty holding that common law agency principles apply to the analysis of whether a service provider like LiveJournal is liable for the acts of the ONTD moderators.

and on pages 16-17 (note that this is not an accurate description of the thousands of LJ communities that are truly run by volunteers):

Although LiveJournal calls the moderators “volunteers,” the moderators performed a vital function in LiveJournal’s business model.10 There is evidence in the record that LiveJournal gave moderators express directions about their screening functions, including criteria for accepting or rejecting posts. Unlike other sites where users may independently post content, LiveJournal relies on moderators as an integral part of its screening and posting business model. LiveJournal also provides three different levels of authority: moderators review posts to ensure they contain celebrity gossip and not pornography or harassment, maintainers delete posts and can remove moderators, and owners can remove maintainers. Genuine issues of material fact therefore exist regarding whether the moderators had actual authority.

And on pages 26-27, among other instructions for the next fact finder:

LiveJournal derives revenue from advertising based on the number of views ONTD receives. Mavrix presented evidence showing that approximately 84% of posts on ONTD contain infringing material, although LiveJournal contested the validity of this evidence. The fact finder should determine whether LiveJournal financially benefitted from infringement that it had the right and ability to control.

And the conclusion on page 28:

For the foregoing reasons, we reverse the district court’s grant of summary judgment to LiveJournal, vacate its order denying discovery, and remand for further proceedings consistent with this opinion.
REVERSED, VACATED and REMANDED.

This does not mean that the case will result in a jury trial as some claim, but rather that the original court must first address the deficiencies in fact finding and evidence gathering (e.g. depositions) before the case proceeds. There is no reference to a jury trial in the entire decision. It could still even result in another summary judgement in favor of LJ, presumably after they have followed the instructions from the appellate court.

The case will involve LJ's status as an "internet service provider" (not defined in the appellate opinion) and their liability for the actions of their employee & subagent (Brendan Delzer (likely akak user "Pinky"), and the sub-agents that he appointed.

I am attaching the opinion of the 9th Circuit Court of Appeals. Note that in the U.S. all court opinions are in the public domain. The first person who pulls it out of the courts' PACER system has to pay by the page, but thereafter they can be shared freely.
 

Attachments

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Alfa1

Well-known member
Nice post and good arguments there!

I would like to note that most forums rely on income from subscriptions & advertisements and therefore can be considered to have a business model. Most forums will also have user generated infringing content, which can be considered as beneficial to their business model. I think most sites have different levels of staff with different rights, as this is engrained into xenforo functionality. A lot of sites have moderator directions on how to moderate.
By the reasoning of the court and considering the aforementioned, the moderators of a forum can be considered agents of the forum owner.

So it seems to me the only & main difference between LJ and many forums is that LiveJournal is a commercial entity.
Larger sites often operate under a registered legal entity. Commercial or non-commercial. So for such sites there is very little difference between LJ and them. For forum webmasters who are not operating registered entities it seems to me that this court case does still put them at jeopardy, as most of the arguments can be used against them and need very little additional arguments to complete such case.

As a long time LJ user what is your opinion of the claim that 84% of posts contained infringing content? That seems like a bizarre claim. Currently I am not seeing much difference in content between ONTD groups and what I see on the average forum. I see mostly embedded content from youtube, social media and article snippets with references.
 

Anthony Parsons

Well-known member
Unless they're breaching YouTube terms, which otherwise say you can use their embed player with ads providing the page / service contains other content: https://www.youtube.com/t/terms
  1. You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written approval:
    • the sale of access to the Service;
    • the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
    • the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales.
  2. Prohibited commercial uses do not include:
    • uploading an original video to YouTube, or maintaining an original channel on YouTube, to promote your business or artistic enterprise;
    • showing YouTube videos through the Embeddable Player on an ad-enabled blog or website, subject to the advertising restrictions set forth above in Section 4.D; or
    • any use that YouTube expressly authorizes in writing.
I think YouTube terms rule them out from copyright where embeds are posted on user generated pages with other content.
 

MikeMpls

Well-known member
So for such sites there is very little difference between LJ and them. For forum webmasters who are not operating registered entities it seems to me that this court case does still put them at jeopardy, as most of the arguments can be used against them and need very little additional arguments to complete such case.
One pitfall here is the meaning of "service provider" that was not defined in the decision. If you have registered your own domains in a DMCA filing with the U.S. Copyright Office, you have pre-identified yourself as a "service provider". I am not a lawyer, but I'm guessing that if Mavrix prevails in anyway, this could be a problem for some people. Personally, I have had 5 domains there registered under my name and a DBA as a "service provider" since 2011. I thought I was protecting myself by registering them, perhaps not.

As a long time LJ user what is your opinion of the claim that 84% of posts contained infringing content? That seems like a bizarre claim. Currently I am not seeing much difference in content between ONTD groups and what I see on the average forum. I see mostly embedded content from youtube, social media and article snippets with references.
Way off the mark for most communities & personal blogs that I perused in the past. Since ONTD focuses on celebrity screwup, it might be very accurate for that specific community. Given that most personal blogs & communities (at least the ones I participated in) are pretty much dead, thanks to Facebook & MySpace, the overall level of infringement is probably higher today.
 

MikeMpls

Well-known member
The 9th Circuit Court of Appeals issued an amended decision on Aug. 30:


Digital Millennium Copyright Act. The panel filed an amended opinion (1) reversing the district court’s holding, on summary judgment, that the defendant was protected by the safe harbor of the Digital Millennium Copyright Act from liability for posting the plaintiff’s photographs online and (2) vacating a discovery order. In its amended opinion, the panel held that the safe harbor set forth in 17 U.S.C. § 512(c) would apply if the photographs were stored at the direction of users. The defendant, a social media platform, posted the photographs after a team of volunteer moderators, led by an employee of the defendant, reviewed and approved them. The panel held that whether the photographs were stored at the direction of users depended on whether the acts of the moderators could be attributed to the defendant. Disagreeing with the district court, the panel held that the common law of agency applied to the defendant’s safe harbor defense. Because there were genuine factual disputes regarding whether the moderators were the defendant’s agents, the panel reversed the district court’s summary judgment and remanded the case for trial. The panel also discussed the remaining elements of the safe harbor affirmative defense. If an internet service provider shows that the infringing material was posted “at the direction of the user,” it must then also show that (1) it lacked MAVRIX PHOTOGRAPHS V. LIVEJOURNAL 3 actual or red flag knowledge of the infringing material; and (2) it did not financially benefit from infringements that it had the right and ability to control. The panel held that to fully assess actual knowledge, the fact finder must consider not only whether the copyright holder has given notice of the infringement, but also the service provider’s subjective knowledge of the infringing nature of the posts. The panel held that to determine whether the defendant had red flag knowledge, the fact finder would need to assess whether it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to the plaintiff’s website was infringing. When assessing the service provider’s right and ability to control the infringements, the fact finder should consider the service provider’s procedures that existed at the time of the infringements and whether the service provider had “something more” than the ability to remove or block access to posted materials. Finally, the panel vacated the district court’s order denying discovery of the moderators’ identities. It remanded the case for further proceedings.

This opinion or order relates to an opinion or order originally issued on April 7, 2017.


http://law.justia.com/cases/federal/appellate-courts/ca9/14-56596/14-56596-2017-08-30.html


So it goes back to the U.S. District Court for a trial.
 

Sim

Well-known member
"Fair Use" doesn't exist in German/EU intellectual property laws.
Same in Australia - although there is some debate about changing the rules, right now there is no concept of fair use (other than in very strict circumstances which don't generally apply in our context).
 
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