As a person running a website or app, the DMCA is a critical tool for protecting your business. You must understand the relationship between user-generated content and the DMCA to maximize the protection and avoid mistakes that can expose you to copyright infringement liability.
UGC and DMCA
UGC DMCA Examples
So, let’s look at some examples to get a real-world view of how the DMCA works. Let’s pretend I add a forum to DMCAAgentService.com. You join as a member. I moderate the posts on the forum. Okay, we are set up and ready to go.
The Supreme Court issues a controversial ruling on a copyright case that radically changes copyright law online. I post an article from Wired magazine on the topic. You believe the writer is incorrect and publish a separate piece from the Los Angeles Times on the subject.
Does the DMCA protect me, as the site owner, if Wired and the Los Angeles Times make copyright claims? We must identify which article constitutes user-generated content to arrive at an answer.
The law does not classify the Wired article as user-generated content because I posted the copy. I am the owner of the forum, not an independent user.
The Los Angeles Times article is user-generated content because you, an unaffiliated user, published the material on the forum. The newspaper would need to file a DMCA takedown notice with our agent to seek the removal of the article from the forum.
So, we have a rule. If a user who is unaffiliated with your site or app posts the content in dispute, the DMCA provides protection. If the user is affiliated with your business, such as an employee, then the DMCA offers no protection.
The DMCA always applies to copyright issues, but these issues can bleed over into additional legal areas. Using the DMCA to remove revenge porn can be an effective tactic for victims. In 2014, hackers penetrated the Apple iCloud storage system and obtained explicit photos of celebrities such as Jennifer Lawrence. The celebrities had photographed themselves and were sharing the images with their partners. Given this, the celebrities owned the copyright in the photos. As the copyright holder, they had the right to submit takedown notices to the sites where the images appeared. Using the DMCA to remove the porn photos was an effective strategy. In the case of revenge porn, the content usually consists of selfies as well. The victim can then submit takedown notices to sites where the revenge porn is posted as the copyright holder.
Employees – Paid or Not
You might wonder what the phrase “affiliated person” means. The DMCA does not protect content posted by such individuals? Employees and owners certainly seem to qualify. The Ninth Circuit Federal District Court recently threw a wrench in the understanding of most people.
The case in question is Mavrix Photographs, LLC v. LiveJournal, Inc. The court decided the case in April 2017. Mavrix sued Livejournal claiming the company had waived the DMCA protection because it used moderators to review and approve user submissions. Livejournal argued the use of moderators was irrelevant because the individuals were unpaid volunteers. In a surprise, the court classified the moderators as “affiliated persons” resulting in LiveJournal losing the DMCA protection.
Lawyers and commentators are highly critical of the Mavrix decision. One can understand why if you think through the process to the logical conclusion. Under Mavrix, a site would be better off not moderating any user-generated uploads. Ironically, the result is more infringing material appearing on the site.
Congress drafted the DMCA to address user-generated content copyright issues. If you allow people to upload content to your site or app, make sure you are compliant with the controversial law to protect your business.