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 in support of the Digital Millennium Copyright Act (DMCA) 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 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@wikimedia.org or me (jgerlach@wikimedia.org).

Best,

Jan

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Jan Gerlach
Public Policy Manager
Wikimedia Foundation
149 New Montgomery Street, 6th Floor
San Francisco, CA 94105
jgerlach@wikimedia.org