IP Law Daily Host of Examiner.com not liable for contributors’ use of infringing photos
Tuesday, April 26, 2016

Host of Examiner.com not liable for contributors’ use of infringing photos

By Thomas Long, J.D.

Photographers could not go forward with copyright infringement claims against media company Clarity Digital Group, LLC (now known as AXS Digital Media Group, LLC), host of the news website Examiner.com, the U.S. Court of Appeals in Denver has decided (BWP Media USA, Inc. v. Clarity Digital Group, LLCApril 25, 2016, Kelly, P.). A district court’s ruling that AXS qualified for interactive service provider immunity under the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) was affirmed.

AXS’s website. Visitors to the Examiner.com website could access articles on a variety of topics, such as arts, entertainment, news, sports, and technology. Content on the site was produced by authors who applied to be contributors, called “Examiners.” After being hired as an Examiner, the authors signed an agreement stating that they “must have permission from the owner/copyright holder of any content before including it on your Web Page, unless it was provided by Examiner.com.” AXS also prohibited Examiners from posting content that they did not have a right to make publicly available.

Alleged infringement. BWP Media USA, Inc. d/b/a Pacific Coast News and National Photo Group, LLC (BWP) provided commercial photograph services and owned the rights to photographs of various celebrities. BWP alleged that AXS copied, posted, and displayed 75 of their photographs on Examiner.com without permission or authorization, and filed suit against AXS for copyright infringement. AXS asserted that it was protected from liability by the DMCA’s safe harbor and moved for summary judgment.

DMCA safe harbor. Section 512 of the DMCA provided that a service provider was not liable for infringement by reason of the storage at the direction of a user of material that resided on a system or network controlled or operated by or for the service provider. To qualify for safe harbor protection, a party must be a “service provider” that adopts and reasonably implements “a policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers” and must accommodate “standard technical measures” that copyright owners use to identify or protect copyrighted works.

“User.” The contributors to Examiner.com were “users” for purposes of the DMCA safe harbor, the district court found. The appellate court agreed. According to the court, the word “user” in the DMCA was straightforward and unambiguous, meaning “one that uses.” This definition included persons who avail themselves of the service provider’s system or network to store content.

The court rejected AXS’s argument that “user” should be defined more narrowly, because a plain-language definition would protect every Internet service provider from copyright infringement liability. “User” was not read in isolation, but in conjunction with the other safe harbor requirements, the Eleventh Circuit noted.

There was no evidence that Examiners were agents of AXS and therefore not “users.” The contract language explicitly designated Examiners as independent contractors. Nothing in the record indicated that Examiners had apparent authority to act as agents for AXS. Even if there were evidence to support a finding of apparent authority, that did not automatically make Examiners employees of AXS; and even if they were employees, that would not automatically exclude their activities from the scope of the safe harbor, the court said.

Content not stored at AXS’s direction. According to the court, the key question was not who was the “user,” but who directed the storage of the infringing content? AXS suggested that Examiners include pictures with articles, but it did not encourage Examiners to post infringing content. Not only did AXS make it clear that copyright infringement was prohibited, it provided Examiners with licensed photos to accompany their articles. No reasonable trier of fact would find that the infringement was at the direction of AXS.

Actual or circumstantial knowledge. Finally, the court determined that AXS did not have actual or circumstantial knowledge of the copyright infringement that would disqualify it from safe harbor protection. There was no evidence that AXS ignored signs or circumstances suggesting that copyright infringement was occurring on Examiner.com. Merely hosting a category of copyrightable content, with the general knowledge that one’s services could be used to share infringing material, was not sufficient to meet the actual knowledge requirement of Section 512.

Accordingly, the court held that AXS was entitled to DMCA safe harbor protection.

The case is No. 15-1154.

Attorneys: Craig B. Sanders and Jonathan M Cader (Sanders Law, PLLC) for BWP Media USA, Inc., d/b/a Pacific Coast News and National Photo Group, LLC. Steven D. Zansberg (Levine Sullivan Koch & Schulz, LLP) for Clarity Digital Group, LLC n/k/a AXS Digital Media Group, LLC.

Companies: BWP Media USA, Inc., d/b/a Pacific Coast News; National Photo Group, LLC; Clarity Digital Group, LLC n/k/a AXS Digital Media Group, LLC

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