Rejecting arguments by digital rights groups and tech companies, a federal appellate court has refused to reconsider its earlier holding that photos on LiveJournal may have infringed a paparazzi agency's copyright.
The 9th Circuit Court of Appeals reiterated on Wednesday that LiveJournal's use of moderators to review material submitted by users leaves the site vulnerable to copyright infringement claims for users' posts.
The ruling stems from a 2012 lawsuit by paparazzi agency Mavrix Photographs, which alleged that LiveJournal's gossip site OhNoTheyDidn't 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, provided that the platforms remove infringing material upon the owner's request. But the safe harbors also have some exceptions, including one for sites that know about infringing material.
In April, a three-judge panel of the 9th Circuit Court of Appeals revived Mavrix's complaint. The judges said there was a factual dispute about whether LiveJournal was entitled to the safe harbors, noting that the company's unpaid moderators may have had reason to know that the photos were infringing.
The judges said in their opinion that the moderators may have served as "agents" of LiveJournal. If so, and if they also knew that posts infringed copyright, LiveJournal may not be eligible for the safe harbors, the judges wrote. The panel ordered the case sent back to the trial judge for a factual determination about both whether the moderators were agents and whether LiveJournal, through agents, knew the photographs infringed copyright.
LiveJournal then asked for a new hearing in front of at least 11 of the 9th Circuit's 29 judges. That request was backed by online companies like Wikipedia and digital rights groups like the Electronic Frontier Foundation, which argued that the panel's opinion could pose new risks to platforms that use moderators.
On Wednesday, the 9th Circuit declined to grant a new hearing. The original three-judge panel slightly revised its original opinion, but didn't change the outcome.