Many online platforms use moderators to screen user content submissions. How does the use of moderators impact a site’s ability to successful defend itself against copyright infringement claims under the Digital Millennium Copyright Act? The Ninth Circuit Court of Appeals addressed this topic in Mavrix Photographs, LLC v. LiveJournal, Inc.

Mavrix alleged that LiveJournal infringed Mavrix’s copyrights by posting twenty photographs (bearing Mavrix’ watermark) between 2010 through 2014. The photographs, including images of singers Beyonce and Katy Perry, were submitted by users then reviewed and approved by a LiveJournal moderator before being posted.

The trial court ruled in LiveJournal’s favor. The Ninth Circuit remanded the case back to the trial court for the fact finder to determine: (a) whether the moderators’ acts were extensive, manual and substantive activities beyond automatic and limited manual activities, (b) if it would be objectively obvious to a reasonable person that material bearing a generic or proprietary watermark was infringing, and (c) whether LiveJournal benefitted financially from the infringement.

How this decision, and the subsequent trial court proceedings, will impact the use of moderators on sites allowing user content remains to be seen. For more details, read Kathy Ossian’s recently published Mavrix Photographs v LiveJournal article in Leading Internet Case Law. Access the 9th Circuit decision here. Contact us at Ossian Law P. C. contact link regarding any information technology law matter.

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