Ventura v Motherless: safe harbor matters

Joshua Lange, the named defendant, owns, operates, and is the sole employee of his internet site, Motherless.com. The site contains over 12.6 million mostly pornographic pictures and video clips. The content generally has been uploaded by the site’s users, and the uploaders may or may not have created the material. Motherless stores the content on servers that Lange owns. In 2011, the website had nearly 750,000 active users and about 611,000 visits daily.

When Lange started Motherless, he uploaded around 700,000 pictures and videos that users had uploaded to a site he previously owned, Hidebehind.com. There is no evidence that any of the Hidebehind.com tranche infringed on anyone’s copyright. Since that initial upload, Motherless has gotten all of its pictures and videos from its users. It does not have any licensing deals with content producers. Motherless does not pay users for the pictures and clips they upload. After the user has uploaded content, he can add a title and tag to it. Tags are words for which Motherless’s search software will look when a user searches for particular content. Motherless does not edit, review, or approve file names, titles, or tags.

The Terms of Use prohibit posting copyrighted material without the prior written consent of the copyright owner, and they invite takedown notices for infringing material. The website gives directions for emailing takedown notices. Motherless also uses a software program that provides copyright owners with a link and password so that they can directly delete infringing material themselves, without having to send a takedown notice to Lange. He deletes any violating material that he or his contractor spot.

Lange personally examines all copyright infringement notices, whether DMCA-compliant or not, and deletes any infringing content that he can find. He locates infringing content using the URL. The complainant identifies the material by the URL and Lange deletes it as quickly as he can, ordinarily within a day or two. He also sends an email to the user who uploaded the video or picture, notifying him that the uploaded material has been deleted. Motherless uses software to prevent users from re-uploading previously deleted material. Lange has deleted over 4.5 million pictures and videos for violating Motherless’s Terms of Use and estimates that 4% to 6% of the deleted files were for copyright infringement.

Motherless does not have a written policy instructing its employees on when to expel repeat infringers; there are no employees to instruct. Lange personally terminates repeat infringers; the independent contractor does not terminate repeat infringers. Termination is a matter of Lange’s judgment. Between 2008 and 2011, Lange terminated over 33,000 user accounts for violating the website’s Terms of Use. Lange estimated that he terminated about 4% to 6% of these users for possible copyright infringement, which would be between 1,320 and 1,980 users.

Ventura Content, the plaintiff, creates and distributes pornographic movies. Ventura found 33 clips on Motherless from movies it had created and had not licensed to Motherless. The infringing clips were anywhere from 20 seconds to 46 minutes long, mostly 15 minutes or longer. It is undisputed that the clips infringed on Ventura’s copyright. None of the clips contained anything to indicate that Ventura owned the copyright.

Eight users uploaded the 33 infringing clips. Lange terminated two of these users by 2012 (after this litigation began), one for repeat copyright infringement. There is no evidence to show that whoever uploaded the Ventura material got any credits or other compensation for these uploads.

Lange does not remember reviewing any of these videos. Ventura did not send DMCA notices or any other sort of takedown notice for the infringing material. Nor did Ventura remove the material itself, as Motherless’s software link enabled it to do. Ventura’s first notice of infringement to Motherless was this lawsuit.

After Lange was served with the complaint in this case, he asked Ventura to send him the URLs for the infringing clips so that he could delete them. Ventura did not respond the first time Lange asked for the URLs, so Lange asked again. Ventura answered his follow-up request. On the day that Ventura gave Lange the URLs, Lange deleted the infringing clips.

Ventura sued Motherless and Lange for copyright infringement under federal law and for unfair business practices under California law. Ventura sought damages and an injunction, but the injunction claim became moot when Lange deleted all the infringing clips. The district court granted summary judgment in favor of Motherless and Lange on the federal copyright claim. Motherless then moved for attorney’s fees under 17 U.S.C. § 505, but the district court denied Motherless’s motion.

The central issue in this case is whether Motherless met the safe harbor conditions. The Digital Millennium Copyright Act places the burden of policing copyright infringement on the copyright owner, not on the person or firm storing and hosting the material. Motherless’s users, not the website, decide what to upload and what file names and tags to use. Because the users, not Motherless, decided what to post – except for Lange’s exclusion of illegal material and his original upload when he created the website – the material, including Ventura’s, was “posted at the direction of users.”

Ventura and its expert argued that Lange must have had actual knowledge that the Ventura clips infringed on its copyright because they appeared to be professionally produced and because a few had watermarks. That argument is unavailing. The watermarks gave no hint that Ventura owned the material, and they do not establish a genuine issue of fact about whether Motherless knew the material was infringing.

Ventura also argued that Motherless had to know the clips were infringing because, it claims, the high quality of the videos showed professional production. But the conclusion does not follow from the premise. Professionally created work often is posted online to publicize and attract business for the creator. Amateurs often do professional quality work in artistic endeavors, and amateurs are no less entitled to copyright protection than professionals, so it is not apparent why professionalism matters. And digital cameras have become so good and so easy to use that even home movies of children’s birthday parties can look professionally done.

Ventura could have indicated its ownership by watermarking its videos as copyrighted, but it did not. And Ventura could have notified Motherless that the clips infringed on its copyright when it discovered them on Motherless’s site, but it did not. Ventura’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.’” If Ventura had notified Motherless about these 33 infringing videos before filing lawsuit and Motherless had not taken them down, then Motherless would have lost its safe harbor. The statutory phrase “actual knowledge” means what it says: knowledge that is actual, not merely a possible inference from ambiguous circumstances.

The copyright owner must show knowledge, actual or red flag, for the videos that infringed its copyright and are the subject of its claim. And for red flag knowledge, infringement must be apparent, not merely suspicious. Congress used the word “apparent,” not “suspicious” or some equivalent. Ventura, not Lange, is in charge of policing Motherless for its copyrighted material. Congress could have put the burden of policing infringement in suspicious circumstances on the provider, but it instead put it on the copyright holder. It must be obvious that the particular material that is the subject of the claim is infringing. Here, it would not be obvious to a reasonable person that the clips excerpted from Ventura movies were infringing.

Ventura did not send Motherless a statutory notification before filing suit. When Lange was served with Ventura’s complaint, he asked Ventura to provide him with the URLs to the infringing clips so that he could delete them. Ventura did not initially respond. Subsequently, Ventura provided the URLs after Lange followed up on his initial request. Lange deleted the 33 infringing clips the same day. That satisfied the “responds expeditiously to remove” requirement.

Motherless certainly had the physical ability to control any and all infringing activity. Lange could take down all of Motherless’s content, infringing or not, and bar any uploads, infringing or not. The court has held, however, that the “‘right and ability to control’ involves ‘something more than the ability to remove or block access to materials posted on a service provider’s website.’” To have the right and ability to control, a service provider must be able to exert “substantial influence” on its users’ activities.

Nothing in the record suggests that Motherless told its users what to upload. Nor was there any evidence that Motherless received “a financial benefit directly attributable to the infringing activity.” There is no evidence that Motherless made any money directly from the Ventura clips. No trier of fact could conclude from the evidence in the record that Motherless had failed to reasonably implement a repeat infringer policy. Safe harbor eligibility does not require perfection, just “reasonable” implementation of the policy “in appropriate circumstances.” Eligibility for the safe harbor is not lost just because some repeat infringers may have slipped through the provider’s net for screening them out and terminating their access.