Mavrix Photographs is urging an appellate court to let stand a ruling that revived its battle with LiveJournal's "Oh No They Didn't" over paparazzi photographs.
Mavrix argues that Oh No They Didn't, an online gossip site, infringed copyright by displaying photos that it didn't own or license.
"Unlike other online magazines about celebrities -- for example, People or US Weekly -- ONTD does not create content or even license it," Mavrix argues in papers filed this week with the 9th Circuit Court of Appeals. "It instead encourages users to pilfer content from third parties and then publishes the content it believes is most likely to enhance advertising revenues."
The dispute between Mavrix and LiveJournal dates to 2012, when Mavrix alleged in a federal lawsuit that OhNoTheyDidn't illegally posted copyrighted photos of Katy Perry and Beyonce. OhNoTheyDidn't is a moderated site containing 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 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, provided that the platforms remove infringing material after receiving complaints.
Mavrix then appealed to the 9th Circuit, which ruled in April that the company was entitled to proceed to a jury trial. An appellate panel said that LiveJournal's volunteer moderators may actually have been its agents, as opposed to users. If they were agents, and knew about infringing material, then LiveJournal potentially wasn't eligible for the safe harbor protection, according to the appellate judges.
LiveJournal then asked for a new hearing in front of at least 11 of the 9th Circuit's 29 judges.
That request is backed by numerous outside groups and companies, including online encyclopedia Wikipedia, digital rights group Electronic Frontier Foundation, Google, Pinterest and Facebook. They argue that the appellate opinion could pose new legal risks to numerous sites that filter user-uploaded content.
"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," Google, Facebook and other companies write in a friend-of-the-court brief. "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."
Mavrix is urging the appellate court to reject that argument and allow the case to reach a jury.
"A jury is entitled to believe that LiveJournal’s rules -- which require users to submit only full articles from reputable third parties -- essentially requires users to infringe," Mavrix argues in its most recent court papers. "It uses the safe harbor as a defense to mass infringement for profit. Its cry that this ruling will end legitimate business on the internet is simply ludicrous."