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

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.


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  • identicon
    Anonymous Coward, 22 Mar 2018 @ 1:51pm

    Stockholm syndrome?

    The more you read it the more convinced you are?, just a thought

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 5:32pm

      Re: Stockholm syndrome?

      I feel gratified that all the posts that responded to me where deleted but the posts that responded to them are intact..

      I feel left out :(

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Mar 2018 @ 2:04pm

    NOWHERE IMPLIES sites can just totally ignore!

    You've many times brought out the phonied-up lawyer's sophistry of the "moderator's dilemma", asserting that sites have NO positive duty to check what's uploaded. -- You are wrong! Doing NOTHING is NOT allowed!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Mar 2018 @ 2:05pm

    I've said all along that sites have some minimal duty to police.

    This person apparently was/is indeed "doing good enough". But Megaupload and other "file hosts" can't simply do nothing and pretend complete ignorance!

    reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 22 Mar 2018 @ 2:27pm

      Re: I've said all along that sites have some minimal duty to police.

      But Megaupload and other "file hosts" can't simply do nothing and pretend complete ignorance!

      Megaupload did honor DMCA notices - even though they had no responsibility to do so since they were not a US company.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Mar 2018 @ 2:06pm

    Businesses are STILL LIABLE even if truly ignorant!

    Businesses are NOT persons with rights, they're LICENSED to exist SO LONG AS behave in Public Interest.


    By the way: this is the highly liberal 9th, the most overturned circuit, so whatever is bad that I overlook will probably not stand.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Mar 2018 @ 2:14pm

    "more I've reread that ruling, I've become less bothered by it"

    At best, you worry too much about highly complex matters that don't actually affect you, do they?

    Your comprehension of law principles is weak?

    You strongly identify with pirates who want free content and therefore any legal action which might reduce that is taken insanely, as personal attack?

    Non-exclusive nor exhaustive list, but I think the latter is strongest.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 2:18pm

      Filthy TOR pirate says what?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 2:23pm

      Re: "more I've reread that ruling, I've become less bothered by it"

      Why are you quoting yourself?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 2:38pm

      Re: "more I've reread that ruling, I've become less bothered by it"

      If the Internet survives, the selling of copies of content will die out, as content creators go back to patronage to enable them to create new works. Free content does not always involve piracy.

      reply to this | link to this | view in chronology ]

  • icon
    Rapnel (profile), 22 Mar 2018 @ 2:34pm

    We all know a reasonable period of time is, oh, about 120 years so it would seem that any reasonable disconnect policy should reasonably be of equally reasonable proportions.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Mar 2018 @ 2:37pm

    Don’t worry Masnick, you use a VPN, so I’m sure they won’t catch you anyway.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 2:37pm

    They struggle with defining what a repeat infringer is and what the punishment is ... all the while not defining what an infringer is.

    Are you an infringer simply because someone says so or is there any sort of due process, evidence requirements, that sort of stuff. Is it simply a log entry containing an IP addr? Logs are not infallible wrt time hacks and IP addr is easily spoofed. I think more evidence would be necessary in order to avoid a kangaroo court.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 22 Mar 2018 @ 3:55pm

      Re:

      Corporations (and that Judge in the Cox case) seem to think that because they say it, its evidence of being an infringer.
      They problem is the several million DMCA notices Google gets & is expected to act on, the huge number of defective, false, & imaginary notices they get should serve as evidence this isn't targeted or accurate.
      Many of the company's sending self styled "DMCA" notices, that are nothing more than a way to send an extortion threat to someone they can't identify, get a cut of the funds raised. This might mean there is a tiny conflict of interest.
      Then there is that pesky thing in the law that just because they are the name on the bill doesn't mean they did it.
      There is no evidence to show who did it, there is no legal requirement for the bill payer to proactively monitor all the traffic on their network to protect a 3rd party.
      The law fails to explain what an infringer is, so everyone gets their own definition & the courts are left to figure it out.

      If you want to claim an extortion DMCA letter is evidence of the billpayer being the evil downloader one needs to return the favor of introducing actual monetary fines for flawed notices & requiring evidence beyond because they pay the bill they are responsible. Innocent until proven guilty is still supposed to be a thing. An IP address is not a person, & these notices hitting a magic number being the trigger to have the account terminated needs to be addressed. There is evidence that a couple of the Extortion Note model companies have sometimes sent hundreds of notices over the same file in a short period of time, how is that fair to someone who's name is on the bill but no one has produced any evidence they did it?

      I can call the Judge in the Cox case a pedophile in a toothless notice (with the same nonexistant punishments for it being false) 100 times, does this mean we should put him on the sex offender registry? By his own actions this is what he believes should happen. Sounds silly, but this example highlights how flawed DMCA notices are & are being abused.

      "A DMCA Takedown is:

      When content is removed from a website at the request of the owner of the content or the owner of the copyright of the content. It is a well established, accepted, internet standard followed by website owners and internet service providers.

      Your right to process. Any owner of content has the right to process a takedown notice against a website owner and/or an Online Service Provider (e.g. ISP, hosting company etc.) if the content owner's property is found online without their permission."

      Source: https://www.dmca.com/faq/What-is-a-DMCA-Takedown

      If you are just downloading, how is this hosting content on a website?
      I don't see them talking about it targeting end users, just websites, hosts, & the ISPs that serve them.
      Technically Google could ignore every single takedown they get for content not on servers they control, the DMCA doesn't make them responsible to make the content harder to search for, because a notice to Google only makes it harder to find from their search engine it doesn't remove the content from the website it's on. The DMCA is only US law, so if the content is on a site outside of the US its kind of pointless.

      We need to start the pushback against the copyright cartels.
      They are misusing DMCA notices, claiming that they actual evidence (when their systems have NEVER been independently audited), its an extortion scheme to get money to avoid a threatened lawsuit that they will not bring because an actual court should look at the millisecond of "evidence" & question how that connects to the billpayer without allowing their entire online life be handed over for a fishing trip.

      I wonder if these huge ass flaws that are just waiting for someone with the will to fight back are the reason the cartel is pushing the "Small Claims" court model where a millisecond of "evidence" would outweigh the efforts of an accused person to prove a negative.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 23 Mar 2018 @ 4:37am

        Re: Re:

        It finally dawned on me, the "proper" way to explain these claims to a Judge without getting a lawyers ass thrown in jail using my pedophile example.

        To explain the process without technobabble your honor...
        Someone was walking past your courtroom, the outer door was closing & they saw a glimpse of someone putting their hands on someone else. They aren't sure who the people were, but run to the nearest officer and claim someone is being beaten to death in your courtroom. As it is your courtroom, the officers put you on notice.
        This same person the next day repeats the pattern of seeing a glimpse & claiming there was a murder. The officers come to your courtroom & tell you to stop beating people to death in your courtroom. You didn't put your hands on anyone, but because your name is on the door they are holding you responsible.
        Lets say this happens 6 times & the officers just arrest you & remove your access to your courtroom, because their policy says 6 claims means you are a repeat offender.

        Would you accept this outcome?
        DMCA notices were intended to allow copyright owners to get their content removed from websites, no where does it mention downloading in the explanation given on DMCA.com.
        A majority of the companies sending these alleged DMCA notices are misusing them to carry a threat of pay us or we'll sue you to the person who's name is on the bill, with no evidence the bill-payer is the responsible party.
        When an ISP steps in to remove the obvious extortionate demands from the notice, they are sued for not disconnecting repeat infringers. This is based on a glimpse through the door, where they do not know the parties involved or what actually happened... but want to hold the only person they can try to blame responsible.
        They won't take these cases to court, because courts are becoming more loathe to force the person who pays the bill to prove the negative they didn't download it.
        In the cases in the courts now there are clear examples that those bringing the cases want it both ways. They want to turn the bill-payers life upside down, publicly shame them, dig through their computers & online accounts to find proof... and then claim a lack of proof is proof they did it & just hid they did it so well their expert can't find it.

        These DMCA extortion attempts are priced low enough so that many people might just pay them to make it stop, guilty or not. Some of the companies using this model offer to settle for a small fee, get you to give them their details & suddenly produce a long list of alleged infringement & the price to settle is now several thousand, but still priced below what it would cost to retain a lawyer... despite the simple fact they don't want to get into court.

        These notices were meant for websites & their owners, not end users. As many of the websites are outside of the reach of US law, its more profitable to force ISP's to aid them in their extortion attempts than to use the actual legal process.

        I think this is a better example.

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 22 Mar 2018 @ 9:24pm

      "If I say you're guilty that should be be good enough."

      They struggle with defining what a repeat infringer is and what the punishment is ... all the while not defining what an infringer is.

      What's really absurd is that as cases like this demonstrate there are plenty of people who don't read it as repeat infringer, but believe, and are willing to argue in court, that it really means 'repeatedly accused infringer'.

      You've got people and companies arguing that simply being accused of copyright infringement is equivalent to being found guilty of infringement, that accusation alone is enough to establish guilt and that companies should be punished for not treating those accusations as such.

      In their 'valiant' moral crusade to protect their government granted monopoly rights, they demonstrate that they are more than willing to throw much more important things like 'innocent until proven guilty' right under the bus.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Mar 2018 @ 11:43am

        Re: "If I say you're guilty that should be be good enough."

        Funny how they complain about not being afforded due process while busily denying other's due process. Oh, and they get really upset when you point this out.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 3:01pm

    Actually, "doing nothing" is allowed. It's called "minding your own business." It's called "not being an unsubsidized arm of a law enforcement agency."

    The concern which CDA 230 addressed was the "moderator's dilemma": if you did ANYTHING, you could be accused of not doing "enough"--you'd be subject to a constant barrage of legal harassment over things that you were not doing, simply because someone else had done them using a vehicle, or tool, or road, or house you had sold/rented to them.

    So the only choices were--do nothing, so as to be able to prove you did not know anything your customers were doing, or do a perfect job of preventing them doing any illegal activity, where--in the case of copyright infringement--it was generally impossible to know what was licensed, and not easy to determine what might be fair use.

    In other words, doing nothing was the ONLY safe approach.

    CDA 230 allowed you to do what you considered reasonable--which would include doing nothing on your own account, or attempting to verify the copyright status of all content, or anything in between--provided that you at least reacted appropriately to other people's allegations of illegal activity.

    CDA 230 did not make the internet possible--before that, anybody who wanted to do all the work involved could set up their own website and post whatever they liked. But CDA 230 did allow ordinary people--the public--to participate in the discussion. In fact, it made forums like this one possible.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 5:12pm

    It's mindboggling to think of the vast amount the time that has been wasted in court by many different litigants arguing about what the DMCA's "repeat infringer" clause actually means, and all the money that could have easily been saved had the intent of the law been written even slightly more precisely.

    Last year, the 9th Circuit Appeals Court heard another "repeat infringer" copyright suit, Perfect 10 v. Giganews. Despite the obvious similarities, no mention was made of that case in the Ventura v. Motherless decision.

    Although Giganews won that case, the financial strain of fighting that and related lawsuits against Perfect 10 (they're still trying to collect $millions in legal fee reimbursement owed to them) has forced Giganews to severely downsize its business operations and sell off over two thirds of its once-vast array of storage servers.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Mar 2018 @ 7:25pm

      Re:

      Disruption happens to out of date, legacy services, your talking about idea's that had their time in the late 90's that is so over facebook groups replaced them like 2 years ago!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Mar 2018 @ 6:17pm

    out_of_the_blue just hates it when due process is enforced.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Mar 2018 @ 8:04am

    It will be interesting to see their pretzel logic used in support of mandatory arbitration of these cases. They can not afford to bring each case to court as they would lose - probably all of them.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 23 Mar 2018 @ 7:33pm

      Re:

      No they are fighting for a "Small Claims" style court to be created. With lower penalties and (I'm not sure how its possible) less evidence required to get a win.
      Then they don't have to waste $400 to file a case to get names, pay for getting the names, & then try to scare enough of them into settling to make it worth it.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 25 Mar 2018 @ 3:01am

        Re: Re:

        With lower penalties and (I'm not sure how its possible) less evidence required to get a win.

        Good question, how do you somehow lower a bar that's already on the ground? They're already pushing for 'An accusation is equal to guilt', how do you provide less than that? 'We showed up in court, that means the accused is guilty'?

        reply to this | link to this | view in chronology ]


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