Moderation, Social Sites and Safe Harbor

[jducoeur]

Just came across this sobering article from a few weeks ago. Summary: LiveJournal has been sued, possibly successfully, over their ONTD group -- apparently somebody posted copyright-infringing material there, and because ONTD is vaguely official and (volunteer-)moderated, there's a strong suggestion that the traditional "safe harbor" provisions may not apply.

Suffice it to say, this is not good news. The precise details of how this falls out will determine how much (if at all) it damages the assumptions of zillions of websites, but a broad interpretation of it could be hugely damaging. One to keep an eye on...

ETA: Okay, it's worth reading the actual appellate decision, at least the summary at the top. (Much of this decision is nicely readable.) This clarifies several things:

• First and most important, this wasn't a decision against LJ per se. Rather, it was the reversal of a summary judgement in favor of LJ. That is, the district court had simply dismissed the case on the grounds that LJ was clearly protected by the DMCA. The appellate court is essentially saying, "No, this one is kind of complicated -- let it go to trial".

• Second, the key reason why this is muddy is that the moderation team of ONTD is apparently led by an LJ employee. ("Although users submitted Mavrix’s photographs to LiveJournal, LiveJournal posted the photographs after a team of volunteer moderators led by a LiveJournal employee reviewed and approved them.") So it's not just "the users" involved: LJ has a quasi-official presence in the group, so they might be legally liable. That's not actually surprising -- I could have told LJ that that's a legally dumb policy.

  (This is why Querki is designed to be strictly self-policing by the users, and why it's intentionally difficult (at the technical level) for company employees to mess with user Spaces: the line between "official" and "user-directed" needs to be crisp and sharp in order to enjoy solid DMCA protections.)

• Third, ONTD isn't a normal LJ group. "In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it." So claiming that this group is run by "users", and therefore is protected by DMCA, is a bit disingenuous.

Overall, I'm somewhat less worried about it, having skimmed the decision. My read of this is that LJ got way too casual about DMCA, and did something strikingly stupid; Mavrix' claim that ONTD is not sufficiently independent to enjoy DMCA protection seems at least somewhat plausible on its face. The court is simply saying that, in this case, it is not obvious that LJ is covered by the DMCA.

While I do think Mavrix are kinda being assholes about it, by the spirit of the DMCA they may well have reasonable grounds for the suit. I'm not sure they're right, and I don't know how this will play out in court, but IMO the appeals court was probably correct in rejecting the summary judgement -- this one is messy, and does need to be properly litigated...

Comments

[metahacker]

Fascinating and concerning. Makes me wonder if the lawsuit is being funded. By whom, I haven't a clue, but an attack on public forums sounds useful to people trying to quell organization and communication. EFF's got my position, and my dime, as usual...

[jducoeur]

Funding is *possible*, but I don't see any reason to believe that it's the case. Really, this one seems entirely plausible on its face: Mavrix are assholes who went after the deep-ish pockets of LJ (as opposed to the presumably shallow ones of the moderators of ONTD), LJ took the matter too casually on the assumption that they were shielded by DMCA, and they got a bad roll of the legal dice.

All that said, this throws a lot of things into confusion -- in particular, as Alexx alludes to below, in what capacity was ONTD considered exempt from DMCA? An awful lot of the online industry hangs on the details here. I really should take the time to read the actual ruling...

[jducoeur]

See the heavy additions above. On reading the actual decision, this isn't an attack on the Internet, this is LJ fouling up big-time...

[alexxkay]

So, I'm not super knowledgeable about this, but in what even vague sense is ONTD "official"? Do they do anything more for ONTD than they do for any other community?

It seems to me that Mavrix might have an actual case against the *moderators* -- but they, presumably, haven't got enough assets to be worth suing.

[jducoeur]

but in what even vague sense is ONTD "official"?

I'm honestly unsure, but I'm pretty sure I have seen LJ talk it up front-page. Hence the "vaguely" -- my (possibly incorrect) sense is that, while it may not be a fully official organ of the company, it's essentially used in a marketing capacity. Hence, it may pierce the veil of protection usually granted through DMCA.

At least, that's my guess -- it's the best explanation I can come up with for why this isn't simply getting thrown out of court...

[jducoeur]

See the heavy additions above. I went and read through the judgement, and yeah -- you can make at least a plausible case that ONTD is quasi-official...

[etherial]

I'm still a little worried that sites that have moderators of any kind -- even unpaid volunteer ones -- will be in deep trouble if the court rules against LJ but I agree that it isn't obvious that LJ was protected by the DMCA on this one.

[jducoeur]

I think that there's a real concern for any site whose moderators are *under the direction of the company*. Paid or unpaid doesn't obviously matter. But I would have said that years ago -- IMO, that's the most straightforward reading of the spirit of the DMCA.

That's one reason why I am a strong believer in providing good moderation tools for user-driven communities to use, but that the site then needs to allow those communities to make their own decisions about community standards, and not interfere. Issues of healthy discourse entirely aside, that's the *legally* safe way to operate...

[alexxkay]

Thanks.

[tpau]

what the heck is ontd?

[jducoeur]

Oh No They Didn't -- I gather it's a stupid celebrity-gossip group on LJ. I've never paid much attention to it, but I gather that it's by far the most popular group on LiveJournal, and is where a lot of their advertising money comes from. (Indeed, if you look at the LJ front page, it says that not only is ONTD the top community, two variations of it are in the top ten.)

From the court ruling, I gather that, since it was their big money-spinner, they put extra support into it -- and hence, it potentially no longer counts as just a "user" community legally...

[tpau]

ah ok. yeah bleh. but that i think pretty seriously makes it not jsut a user community, if staff is moderating...

[lauradi7dw]

It showed up on the side of my LJ feed, not within it. I assumed that it was totally an advertising thing, and never clicked on it. I had no idea it counted as a group.

[sporky_rat]

It's the acronym of 'Oh No They Didn't'. Celebrity stuff. (I looked at it years upon years ago just as a wandering through and it looked like the tabloids at the checkout lane.)

[drwex]

And this is why I have a hobby of reading court decisions. What you get in the headlines and popular press is often quite wrong...