Mavrix Photographs v. LiveJournal: the issues of safe harbour appliance

LiveJournal operates a web-based social media platform that allows users to create personalized online “journals.” LiveJournal users can also create “communities” around specific topics or shared interests. Users can post content to their personal journals or to communities they join, and can comment on content posted by other users. Anyone can set up a LiveJournal account and participate in the service. Currently, LiveJournal hosts more than 14 million journals and more than 2.6 million communities.

Every LiveJournal community has at least one user who acts as a “maintainer.” The maintainer has administrative privileges that allow him or her to add new maintainers, delete posts or comments, and remove or ban users from the community. Certain communities also have chosen to be moderated communities. Moderated communities have users who have volunteered to moderate the discussion by rejecting posts uploaded by the general users. For example, moderators can reject posts that are spam, pornographic, harassing, or off-topic for the community. When a user submits a post, it is automatically uploaded onto LiveJournal’s servers and placed in a queue. Any moderator signed in at the time can reject the post or approve it, at which point it becomes visible to the community. Moderators do not have the ability to edit or modify a post — that can only be done by the user who uploaded it. Any maintainer has the ability to remove a moderator, but the decision is generally made by all maintainers and moderators as a group. A moderator may be removed if, for instance, he or she is no longer actively participating in the community.

All LiveJournal users are subject to LiveJournal’s Terms of Service. In addition, each community can institute its own guidelines and rules for posting and commenting in that community. LiveJournal’s Terms of Service expressly prohibit, among other things, the posting of content that infringes any copyright of a third-party. LiveJournal has in place a policy to terminate the accounts of users who are repeat copyright infringers, even going as far as to block their IP addresses so they cannot register a new LiveJournal account. LiveJournal provides a form, contact information, and a designated agent to assist copyright owners in submitting notices of claimed copyright infringement pursuant to the DMCA. Upon receipt of a DMCA-compliant “take-down” notice, LiveJournal promptly disables the material claimed to be infringing, typically within 24 hours and no longer than three days pursuant to its internal policy.

“Oh No They Didn’t!” (“ONTD!”), http://ohnotheydidnt.livejournal.com, is a LiveJournal community geared toward discussion of celebrity gossip and pop culture with over 99,000 members worldwide. ONTD! has chosen to be a moderated community. It has nine moderators, and six of the moderators are also maintainers. The community has also developed a set of rules.

Defendant Mavrix made no attempt to send LiveJournal a DMCA take-down notice or otherwise notify LiveJournal of any of the seven allegedly infringing sets of photographs before filing lawsuit. Upon receipt of Mavrix’s Complaint and FAC in this action, LiveJournal responded as if it received a DMCA-compliant notice and disabled access to the posts containing the alleged infringement. Two of the posters were “repeat offenders” pursuant to LiveJournal’s copyright abuse policy, so LiveJournal terminated their accounts.

It is undisputed that third-party users selected the content for the seven posts in question, created the posts, and uploaded the posts to LiveJournal’s service. That all posts had to be approved by a moderator before becoming visible on the site does not disqualify LiveJournal under the “broad” statutory language of the DMCA safe harbour for “infringement . . . by reason of the storage at the direction of the user.”

It is undisputed that, before filing this lawsuit, Mavrix did not provide notice to LiveJournal of any of the seven allegedly infringing posts uploaded to ONTD! Between 2010 and 2014. Mavrix’s “decision to forgo the DMCA notice protocol ‘stripped it of the most powerful evidence of a service provider’s knowledge — actual notice of infringement from the copyright holder.’ ”

The evidence before the Court showed neither high levels of control by LiveJournal nor LiveJournal inducing its users to commit copyright infringement. The undisputed facts show that users of the LiveJournal service, not LiveJournal, select the content to be posted, put that content together into a post, and upload the post to LiveJournal’s service. LiveJournal does not solicit any specific infringing material from its users or edit the content of its users’ posts. Nor does it have the ability to do so.

LiveJournal is simply the operator of an online platform on which anyone can create his or her own individual blog or start a group blog based on shared interests. LiveJournal is entitled to the § 512(c) safe harbor for the seven allegedly infringing posts users of its service composed and uploaded to the ONTD! site. Accordingly, Mavrix’s cross-motion for partial summary judgment is DENIED.