IP Law Daily Porn site escapes infringement liability though DMCA safe harbor
News
Thursday, March 15, 2018

Porn site escapes infringement liability though DMCA safe harbor

By Joseph Arshawsky, J.D.

Motherless, Inc. ("Motherless"), host of the motherless.com porn aggregation web site, qualified for the safe harbor defense set forth in the Digital Millennium Copyright Act ("DMCA") and therefore the federal district court in Pasadena properly granted summary judgment to Motherless, on copyright infringement claims brought by an adult content provider, a divided panel of the U.S. Court of Appeals for the Ninth Circuit ruled. (1) The material on the website was stored at the direction of users of motherless.com, who decided what to post; (2) Motherless did not have actual or apparent knowledge that the clips were infringing; (3) Motherless expeditiously removed the infringing material upon receiving notice; (4) Motherless did not receive a financial benefit directly attributable to infringing material it had the right and ability to control; and (5) Motherless had a policy for excluding repeat infringers from the website. Circuit Judge Rawlinson dissented, because in his view, that there were sufficient fact issues on the final factor to warrant a trial (Ventura Content, Ltd. v. Motherless, Inc., March 14, 2018, Kleinfeld, A.).

Joshua Lange, the named defendant, owns, operates, and is the sole employee of his internet site, motherless.com. No one must pay Motherless or Lange anything to look at the pictures or watch the videos on his site. 85% of revenues come from advertising, and the balance from subscriptions, t-shirts, coffee mugs, and the like. At some point Lange paid large contributors, but it was to the tune of $200 for 300,000 videos. Lange testified that he and an independent contractor review all contributions to remove child pornography, bestiality, and infringing videos. Lange personally terminates repeat infringers, doing so between one and two thousand times. Ventura Content, the plaintiff, creates and distributes pornographic movies. Ventura found 33 clips on Motherless from movies it created. There were no marks to suggest copyright or ownership on those clips. The views of the Ventura clips were "a miniscule proportion of the total views on Motherless." Ventura did not send DMCA notices or any sort of takedown notice, nor did Ventura remove the material as Motherless’s software link allowed. Ventura’s first notice of infringement was this lawsuit. The district court granted summary judgment on the federal copyright claim, and this appeal followed. The Ninth Circuit affirmed.

Safe Harbor. The Online Copyright Infringement Liability Limitation Act is a portion of the DMCA that provides the safe harbor provisions at issue on this appeal. The court assumed without deciding that Ventura established direct infringement by motherless.com users, because it was unnecessary to reach that issue. For a service provider to receive safe harbor protection under 17 U.S.C. Section 512(c)(1), it must not know of the infringement, and the infringement cannot be apparent. It must also take down or prevent access to the infringing material as soon as it learns about or receives a DMCA notice. And it must not directly benefit financially from the infringement in situations when it can control the activity. Finally, the service provider must have a policy to terminate users who repeatedly infringe on copyrights, and it must implement that policy reasonably, as described in Section 512(i).

"By reason of the storage at the direction of a user." The court disagreed with Ventura that Motherless material was stored and made available "at the direction of" Motherless, not the users. Lange has not uploaded any material to the site since he started it with old material. None of the infringing clips were uploaded by Lange or independent contractors. Under Section 512(m), simply because Motherless monitors for infringement or disables access to material where the conduct depicted is prohibited by law, Motherless does not lose the safe harbor protections. Altering the file format to make it accessible before posting and enabling users to apply search tags to uploads does not remove the posting of the content from being at the direction of a user. Also, simply being more than an electronic storage locker does not deprive the website of safe harbor protection. The Motherless rules is "anything legal stays." Lange does not exercise judgment in what to host. "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.’"

Knowledge and expeditious takedown. Four of the 33 clips had watermarks, but they were for other porn aggregation sites, not Ventura. "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." The court also rejected Ventura’s argument that the 33 clips were of "high quality," finding that in fact such was not the case. In any event, amateur videos these days can be of "high quality" too. "Nothing about their professionalism would inform Motherless that they were infringing or would make infringement apparent." Also, Ventura chose not to give notice. There is also nothing about the Ventura clips that would make infringement apparent. Hosting material capable of copyright protection, with the general knowledge that the site could be used to share infringing material, is not enough to impute knowledge. Here, it would not be obvious to a reasonable person that the clips excerpted from Ventura movies were infringing. Lange discouraged the posting of infringing materials, unlike other cases of pirate websites. In this case, Motherless removed the infringing clips as soon as it obtained the URL’s from Ventura, which satisfies the "responds expeditiously to remove" requirement.

Right and ability to control. 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. There is no evidence Motherless made any money from the Ventura clips.

Repeat infringer termination. The safe harbor cannot be used unless "the service provider adopts and ‘reasonably’ implements a policy of terminating repeat infringers in ‘appropriate’ circumstances." Motherless gave notices that said that "it is the firm policy of the site to terminate the account of repeat copyright infringers, when appropriate." The panel ruled that the lack of a written policy was not dispositive when only Lange was responsible for the policy and administering it. "In deciding to terminate a user, he consider the account’s history, as well as his memory and judgment." The panel was impressed by how few repeat infringers slipped through the cracks of this policy. "No trier of fact could conclude from the evidence in the record that Motherless had failed to reasonably implement a repeat infringer policy." The safe harbor does not require perfection.

Dissent. Circuit Judge Jonnie Rawlinson dissented, writing that there were triable issues of material fact as to whether the defendants qualified for the safe harbor. Specifically, there were disputed issues regarding their compliance with the requirement that they adopt, implement, and inform subscribers and account holders of a policy providing for termination of repeat offenders. The lack of a written policy here was critical, in Judge Rawlinson’s opinion.

The case is Nos. 13-56332 and 13-56970.

Attorneys: Peter Afrasiabi (One LLP) for Ventura Content, Ltd. David Speer Richman (Theodora Oringher PC) for Motherless, Inc.

Companies: Ventura Content, Ltd.; Motherless, Inc.

MainStory: TopStory Copyright TechnologyInternet AlaskaNews ArizonaNews CaliforniaNews HawaiiNews IdahoNews MontanaNews NevadaNews OregonNews WashingtonNews

Back to Top

Interested in submitting an article?

Submit your information to us today!

Learn More