The Digital Millennium Copyright Act's so-called "safe harbor" defense to infringement is under fire from a paparazzi photo agency. A new court ruling says the defense may not always be available to websites that host content submitted by third parties.

The safe harbor provision is what has given rise to sites like YouTube and various social media platforms. In essence, safe harbor was baked into the DMCA to allow websites to be free from legal liability for infringing content posted by their users—so long as the website timely removes that content at the request of the rights holder.

But a San Francisco-based federal appeals court is ruling that, if a website uses moderators to review content posted by third parties, the safe harbor privilege may not apply. That's according to a Friday decision in a dispute brought by Mavrix Photographs against LiveJournal, which hosts the popular celebrity fan forum "Oh No they Didn't." The site hosted Mavrix-owned photos of Beyonce Knowles, Katy Perry, and other stars without authorization.

LiveJournal claimed it was immune from copyright liability because it removed the photos. Mavrix claimed that the site's use of voluntary moderators removed the safe-harbor provision. The 9th US Circuit Court of Appeals sided with Mavrix to a degree, but the court wants to know how much influence the moderators had on what was and was not published. With that, the court sent the case back to a lower court in Los Angeles to figure that out, perhaps in a trial.

"Posts are at the direction of the user if the service provider played no role in posting them on its site or if the service provider carried out activities that were 'narrowly directed' toward enhancing the accessibility of the posts," wrote Judge Richard Paez for the three-judge unanimous court decision (PDF). "The ONTD moderators manually review submissions and publicly post only about one-third of submissions. The moderators review the substance of posts; only those posts relevant to new and exciting celebrity gossip are approved. The question for the fact finder is whether the moderators’ acts were merely accessibility-enhancing activities or whether instead their extensive, manual, and substantive activities went beyond the automatic and limited manual activities we have approved as accessibility-enhancing."

The highly nuanced decision overturned a lower court ruling that said LiveJournal was protected by safe harbor. The lower court said LiveJournal does not solicit any specific infringing material from its users or edit the content of its users' posts.

Etsy, Kickstarter, Pinterest, and Tumblr, in urging the appeals panel not to rule as it did, told the court that “under Mavrix’s approach, service providers could not moderate content, attempt to screen out objectionable material, or organize the information that their users submit without putting their safe harbor at risk."

The Electronic Frontier Foundation said the decision is of great concern, as countless websites that benefit from the safe harbor provision employ moderators.

The fact that moderators reviewed those submissions shouldn’t change the analysis. The DMCA does not forbid service providers from using moderators. Indeed, as we explained in the amicus brief (PDF) we filed with CCIA and several library associations, many online services have employees (or volunteers) who review content posted on their services, to determine (for example) whether the content violates community guidelines or terms of service. Others lack the technical or human resources to do so. Access to DMCA protections does not and should not turn on this choice.

The Motion Picture Association of America took a neutral stance in a friend-of-the-court brief.

The MPAA takes no position on the facts of this case. If the record supports Mavrix’s allegations that LiveJournal solicited and actively curated posts for the purpose of adding, rather than removing, content that was owned by third parties in order to draw traffic to its site, LiveJournal would not be entitled to summary judgment on the basis of the safe harbor for the reasons we explain below. If, however, the record does not support Mavrix’s allegations, this Court can and should resolve this case without upsetting any of the following well-settled principles.

No new court date has been set.