9th Circuit Appeals Court Recognizes That DMCA Repeat Infringer Policies Must Be Flexible

Copyright

from the good-to-see dept

We were concerned, last month, by the appeals court ruling in the Cox v. BMG case regarding the DMCA’s repeat infringer policy rules, though the more I’ve reread that ruling, I’ve become less bothered by it. While I’m still concerned about how bad decisions by Cox created potentially bad law, there are enough specifics in the ruling that hopefully will limit the impact to specific circumstances. In particular, whereas Cox was found to not have implemented a “reasonable” termination policy for repeat infringers, the court does acknowledge that the law means that the platforms have wide leeway in determining what their termination policy should be. The real problem for Cox was that it appeared not to actually follow its own policy, and thus did not reasonably implement it.

That was over in the 4th Circuit. Last week, the 9th Circuit ruled on a case where there were also questions about a repeat infringer policy, and the ruling is a clean ruling in defense of platforms determining their own rules for terminating repeat infringers. The case, Ventura Content v. Motherless, involves a porn producer suing a site that allowed user uploads of porn. From the description in the case, Motherless qualifies for the DMCA’s safe harbors as a site where the content is submitted by users, and the ruling goes into great detail about the steps that Motherless’s sole employee, Joshua Lange, goes through to review content uploaded to the site to make sure it doesn’t violate the site’s terms (which mostly seem aimed at blocking child porn). Motherless also appears to follow a pretty standard DMCA takedown process. Actually, the site appears to go beyond what is legally required in accepting notices that don’t even meet the DMCA notice standard, and removing much of the notified content.

While the site did not have a written out “repeat infringer policy,” Lange did have some mental metrics he used in reviewing accounts, and did shut off ones that were receiving lots of copyright takedown notices.

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. He considers the following factors in deciding whether to terminate a repeat infringer: (1) the volume of complaints; (2) the amount of linked content in the complaints; (3) the timespan between notices; (4) the length of time the alleged infringer?s account had been active; (5) the amount of total content the account has; (6) whether the user is maliciously and intentionally uploading infringing content or uploading content without knowing the source; and (7) whether the takedown notices were DMCA-compliant. 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 argued that, since there’s no written policy, Motherless no longer qualifies for the DMCA’s safe harbors, which require such a policy. The court, however, points out that Lange’s “policy” is good enough.

Doubt that Motherless really does have a ?policy? of terminating repeat infringers that is ?reasonably implemented? is unavoidable in light of unsystematic and casual implementation. But doubt is not evidence. Ventura has presented no evidence to establish a genuine issue of fact as to whether Motherless failed to reasonably implement its policy. Motherless, however, has met its burden. The absence of any significant number of repeat infringers who escaped termination compels the conclusion that a trier of fact could not conclude, on the record before us, that Motherless failed to meet the repeat infringer eligibility requirement for safe harbor. Motherless and Lange are therefore entitled to claim the protection of the safe harbor.

There are some other good points in there as well, including pointing out that a repeat infringer policy need not be perfect:

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. The evidence in the record shows that Motherless terminated between 1,320 and 1,980 users for alleged copyright infringement and that only nine alleged repeat infringers had slipped through. Of those nine, only six were before Ventura filed its lawsuit, and only four of the six had been the subject of more than one DMCA notice. That suggests that less than one repeat infringer in 100,000 active users was missed. If that is the extent of failure, there could be no genuine issue of material fact as to whether Motherless ?reasonably implemented? its termination policy. Congress used the word ?reasonable? to modify ?implemented,? so the phrase cannot be construed to require perfect implementation.

And even though the “policy” was all in Lange’s head, the court says that’s good enough.

The details of the termination policy are not written down. However, the statute does not say that the policy details must be written, just that the site must inform subscribers of ?a policy? of terminating repeat infringers in appropriate circumstances. Motherless consists only of Lange and a few independent contractors, and Lange alone determines when to terminate repeat infringers. A company might need a written policy to tell its employees or independent contractors what to do if there were a significant number of them, but Motherless is not such a firm. Small operations in many industries often do not have written policies because the owners who would formulate the policies are also the ones who execute it. There might not have been a need for anything in writing. So the lack of a detailed written policy is not by itself fatal to safe harbor eligibility. Neither is the fact that Motherless did not publicize its internal criteria.

There’s a lot more in the ruling, but most of it is pretty standard DMCA stuff, including Ventura ignoring lots of other cases about what constitutes “red flag knowledge.” One other thing of note: Ventura, incredibly, tried to argue that Motherless should lose its DMCA safe harbor provisions because the site does some screening. Thankfully the court points out how silly an argument that is:

Ventura cites no authority for the unlikely proposition that screening out illegal material eliminates the safe harbor shield. Indeed, section 512(m) says that the law should not be construed to eliminate the safe harbor because a service provider monitors for infringement or disables access to material where the conduct depicted is prohibited by law.11 Motherless screens out child pornography because it is prohibited by law. It screens out bestiality because a few European countries prohibit bestiality pornography by law, and some of Lange?s European advertisers voiced concerns about this content. We find it counterintuitive, to put it mildly, to imagine that Congress intended to deprive a website of the safe harbor because it screened out child pornography and bestiality rather than displaying it. Instead, we read section 512(m) to say that Congress expressly provided that such screening does not deprive a website of safe harbor protection.

I imagine the statements concerning repeat infringer policies may come up in other cases, now that some in the legacy entertainment industry have been choosing to attack that part of the DMCA’s safe harbors. Having a nice, clean precedent like this hopefully will help block some of the more ridiculous claims concerning repeat infringer policies.

Filed Under: 9th circuit, copyright, dmca, joshua lange, repeat infringer
Companies: motherless, ventura content