• by Wendy Davis , Staff Writer @wendyndavis, May 15, 2017

A recent decision in a battle over paparazzi photos could force countless online companies to revise the way they monitor their platforms.

That's according to online encyclopedia Wikipedia, the digital rights groups Electornic Frontier Foundation and Public Knowledge, and several library associations that are now seeking to weigh in on the case -- a lawsuit brought by Mavrix Photographs and blogging and social media platform LiveJournal.

The dispute dates to 2012, when Mavrix alleged that LiveJournal's gossip site OhNoTheyDidn't illegally posted copyrighted photos of Katy Perry and Beyonce. OhNoTheyDidn't is a moderated site that contains content posted by users.

Mavrix didn't alert LiveJournal to the alleged copyright infringement before filing suit, according to the court papers.

A trial judge threw out the lawsuit on the grounds that the Digital Millennium Copyright Act's "safe harbors" protect sites from copyright infringement liability based on users' posts. Those safe harbors broadly say that tech platforms are immune from copyright liability based on material posted by users (or at their direction), provided that the platforms remove infringing material after receiving complaints.

In April, a panel of the 9th Circuit Court of Appeals reversed that decision. The court said there was a factual dispute about whether the photos were posted "at the direction" of users, because LiveJournal didn't post the material until after it was reviewed by a moderator.

LiveJournal recently asked for a new hearing in front of at least 11 of the 9th Circuit's 29 judges.

Late last week, Wikipedia, the EFF and other groups filed a friend-of-the-court brief supporting the request for a new hearing. The organizations say the opinion could pose new risks to a host of platforms that use moderators.

"Many Internet platforms that host user-uploaded content review that content for illegal or objectionable material," Wikipedia and the others say."These efforts should not endanger their eligibility for the DMCA’s safe harbors. Unfortunately, the panel’s decision would have exactly that result."

The groups add that Mavrix's arguments could end up backfiring on copyright holders. That's because many sites currently voluntarily screen content posted by users to determine whether the material infringes copyright.

"Copyright holders have benefitted greatly from these proactive measures that exceed the DMCA’s requirements," the groups write. "The panel’s decision would undo these significant public benefits."