A recent decision from a federal appeals court in California will likely have broad implications on what screening procedures, if any, a service provider adopts for user-generated posts and material.
The case, which is called Mavrix Photographs LLC v. LiveJournal Inc., limits the availability of safe harbor protection for social media platforms and other sites that use moderators to review user-submitted posts, even when the website has processes in place for expeditiously removing materials identified in takedown notices under the federal Digital Millennium Copyright Act.
Safe harbor protection can shield you from liability for the copyright infringements of your site’s users if you establish effective notice-and-takedown procedures and promptly remove content when you’ve been notified it is infringing.
The decision suggests that a service provider may lose safe harbor protection based on its efforts to curate materials available on its platform.
That means a service provider facing a lawsuit may be better off not invoking the safe harbor, so the burden remains on the plaintiff to establish the elements for its claims based on the substantive standards for infringement. If the safe harbor isn’t claimed, the defendant doesn’t have to prove it’s entitled to the protection.
Given the important role the Digital Millennium Copyright Act plays in the operations of national Internet service providers, this case could soon become the first case before the U.S. Supreme Court to squarely address the Act’s safe harbor provisions, so it’s one to watch.