Ventura Content v. Motherless
885 F.3d 597 (2018)
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Rule of Law:
An online service provider qualifies for the Digital Millennium Copyright Act's (DMCA) safe harbor from infringement liability if the content is stored at the direction of users, the provider lacks actual or apparent knowledge of the specific infringement, acts expeditiously to remove infringing content upon notice, does not receive a direct financial benefit from infringement it can control, and reasonably implements a policy to terminate repeat infringers.
Facts:
- Joshua Lange owned and operated Motherless.com, a website hosting millions of user-uploaded pornographic images and videos.
- Ventura Content, Ltd., a producer of pornographic movies, held the copyrights to 33 video clips that users uploaded to Motherless.com.
- The 33 infringing clips on Motherless.com did not contain any watermarks, credits, or other information indicating that Ventura Content owned them.
- Lange and an independent contractor performed a rapid visual screening of thumbnails of all uploaded content, primarily to detect and remove illegal material like child pornography or content with obvious copyright notices.
- The website's Terms of Use prohibited copyright infringement, provided a system for copyright holders to send takedown notices, and even allowed them to delete infringing material directly.
- Ventura Content never sent Motherless a DMCA takedown notice or used the provided tools to remove its content prior to initiating litigation.
- Upon being served with the lawsuit, Lange requested the URLs for the infringing clips from Ventura and deleted them the same day he received them.
- Lange had an unwritten, discretionary policy for terminating users who repeatedly infringed copyrights, based on factors including the volume and frequency of complaints, and had terminated between 1,320 and 1,980 users under this policy.
Procedural Posture:
- Ventura Content, Ltd. sued Motherless, Inc. and Joshua Lange in the U.S. District Court for the Central District of California (trial court) for copyright infringement.
- The district court granted summary judgment in favor of Motherless and Lange, holding they were protected by the DMCA safe harbor.
- The district court declined to exercise supplemental jurisdiction over Ventura's state law claim and denied Motherless's subsequent motion for attorney's fees.
- Ventura Content, Ltd. (as appellant) appealed the summary judgment ruling to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does an online service provider that hosts user-uploaded content qualify for the Digital Millennium Copyright Act's § 512(c) safe harbor defense when it screens for some illegal content, lacks knowledge of the specific infringing works at issue, removes them immediately upon notice, and implements an unwritten, discretionary policy for terminating repeat infringers?
Opinions:
Majority - Judge Kleinfeld
Yes. The service provider qualifies for the DMCA safe harbor because it satisfied all statutory requirements. The material was stored 'at the direction of a user,' as Motherless's screening for illegal content and automated categorization are permissible access-facilitating functions, not substantive editorial control. Motherless lacked both actual and apparent ('red flag') knowledge of the specific infringement of Ventura's works; general awareness that a platform might host infringing content is insufficient, and the clips themselves contained no indicators of infringement. Motherless acted expeditiously to remove the content once it received notice (via the lawsuit). Finally, Motherless 'reasonably implemented' its policy of terminating repeat infringers under § 512(i); the policy need not be perfect, written, or automated, and Ventura failed to produce evidence of a substantial failure in implementation, as doubt about the policy's effectiveness is not evidence.
Dissenting - Judge Rawlinson
No. Summary judgment was improper because triable issues of material fact exist as to whether Motherless reasonably implemented a repeat infringer policy. Lange's unwritten, inconsistent, and discretionary 'gut decisionmaking process' does not constitute a formal policy as required by the statute. Evidence that a major uploader was not terminated until after a fourth DMCA notice, contrary to one of Lange's stated rules, creates a genuine dispute. The majority improperly relies on the 'paucity of proven failures' when Motherless's own unsystematic record-keeping makes it impossible to know the true number of repeat infringers who were not terminated.
Analysis:
This decision significantly strengthens the DMCA safe harbor for user-generated content platforms by setting a high bar for plaintiffs to prove a service provider's knowledge or failure to implement a repeat infringer policy. The court affirmed that knowledge must be of the specific infringement at issue, not just general awareness of potential infringement on the site. Critically, it provides substantial deference to a service provider's repeat infringer policy, even if it is unwritten and discretionary, as long as the plaintiff cannot produce significant evidence of its failure. This precedent makes it more difficult to hold smaller or less-resourced platforms liable for user infringement, reinforcing the principle that the primary burden of policing infringement lies with the copyright holder.
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