Dear All,
On Friday, May 12, the Wikimedia Foundation joined the Electronic Frontier
Foundation, Public Knowledge, the American Library Association, and others
in filing an amicus brief
<https://wikimediafoundation.org/wiki/File:WMF,_et._al._Amicus_Brief_in_Mavrix_v._LiveJournal.pdf>
in support of the Digital Millennium Copyright Act (DMCA)
<https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act> safe
harbor. The case in question is Mavrix Photographs, LLC v. LiveJournal, Inc.
LiveJournal has petitioned the United States Court of Appeals for the Ninth
Circuit
<https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Ninth_Circuit>
to grant rehearing, and the brief supports that petition.
LiveJournal is a blogging and social media platform. Mavrix is a photo
agency that filed a copyright infringement lawsuit against LiveJournal,
claiming that one of the LiveJournal blogs featured some of its
photographs. As the content in question was posted by users, LiveJournal
argued that it was immune to suit under the safe harbor granted by section
512(c) of the DMCA. However, Mavrix claimed that the presence of volunteer
moderators, who prescreened content before it was posted, made LiveJournal
ineligible for this safe harbor. It claimed that the moderators acted as
LiveJournal’s agents, and gave LiveJournal control over the alleged
infringing activity. The district court agreed with LiveJournal, but Mavrix
appealed. A panel of the Ninth Circuit overturned the lower court’s ruling,
holding that there is a genuine dispute as to whether the moderators are
LiveJournal’s agents or not.
We joined an amicus brief to argue that this outcome is counter to the
legislative intent behind the DMCA. If having a screening process means
that a platform will lose its immunity to suit, websites will have less
legal leeway to defer to user judgement on issues like moderation and
content policies to ensure that content is legal and in line with community
or site policies. The Wikimedia Foundation relies on the DMCA safe harbor
to ensure that if infringing content ever appears on the Wikimedia
projects, it can be handled by admins and community processes. We believe
that the WIkimedia projects can thrive thanks to the safe harbor protection
that lets the Foundation defer to community decisions. .
We will keep you posted on the outcome of this case. As always, we will
continue to monitor ongoing cases related to copyright and other matters
that could affect the future of the projects, the communities, and the
Foundation, and speak up where we have an opportunity to do so. If you see
any similar cases in your country, please send an email to
apalmer(a)wikimedia.org or me (jgerlach(a)wikimedia.org).
Best,
Jan
==
Jan Gerlach
Public Policy Manager
Wikimedia Foundation
149 New Montgomery Street, 6th Floor
San Francisco, CA 94105
jgerlach(a)wikimedia.org