A battle over paparazzi photos has drawn the attention of Silicon Valley's biggest players, who say a recent court decision could harm tech companies, consumers and copyright owners alike.
"Unless corrected, this ruling will have serious consequences," Facebook, Google, IAC/Interactive, Pinterest and others say in court papers filed last week with the 9th Circuit Court of Appeals.
They are weighing in on a five-year-old copyright dispute between Mavrix Photographs and blogging and social media platform LiveJournal. In 2012, 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 dismissed the case 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.
But a three-judge panel of the 9th Circuit revived the lawsuit, holding that LiveJournal's use of moderators to pre-screen material submitted by users creates a factual dispute about whether the photos were actually posted at the direction of users.
LiveJournal recently asked for a new hearing in front of at least 11 of the 9th Circuit's 29 judges; a coalition of digital rights group filed a friend-of-the-court brief backing that request.
Last week, Google, Facebook and other Silicon Valley companies filed their own friend-of-the-court brief, also backing LiveJournal. The tech companies argue that appellate judge's ruling could discourage companies from pre-screening users' posts -- to the detriment of users and copyright holders.
"The panel’s decision threatens to expose online services to a possible loss of DMCA protection simply because they make efforts to screen content that users submit for posting," the companies write. "If the panel intended that result, its decision is profoundly mistaken, and it will harm not just service providers and their users, but copyright owners as well."
They add that companies have good reasons to use screen content before allowing it to go live. "Prescreening can help ensure that what appears on a given site is relevant to the site’s purpose, consistent with its quality standards, and not illegal," they write. "It benefits users by keeping good content from being drowned out by pornography, graphic violence, and a wide range of other undesirable material, from gibberish spam, to online bullying and disinformation, to hateful terrorist propaganda."