Can you create a business model based on the safe harbor protections of the DMCA to, frankly, make money off of copyright infringement? An appellate ruling in a case involving Examiner.com seems to suggest as much.
The Examiner.com Case
Examiner.com is a news-ish site covering everything from random news events to the Kardashians. Unlike a traditional news outlet, Examiner does not employ journalists to write content for the site. Instead, the business hires independent contractors to do the work, and those individuals must consent to an independent contractor agreement.
BWP Media is the copyright owner of numerous celebrity photos. In 2014, the company sued Examiner’s parent company alleging that writers for Examiner republished celebrity photos without permission. Examiner responded by claiming the safe harbor immunity available under the DMCA, arguing that only the writers could be held liable because the writers posted the content and Examiner did not manually approve the content.
The trial judge found for Examiner. He ruled that Examiner was essentially no different than the Facebooks of the world, to wit, the site is not proactively involved in the creation and posting of infringing content. Given this, the company can take advantage of the DMCA safe harbor provisions.
As you might imagine, BWP Media was furious with the decision. The company appealed the case. The appellate court issued a ruling this past week and found for Examiner again. Once again, the court focused on the fact the writers are independent contractors and further noted the independent contractor agreements agreed to by the writers included prohibitions against posting infringing material.
In light of the Examiner ruling, one can imagine a simple business model. Create a site on a particular subject. Invite people to post content to the site, but force them to sign an independent contractor agreement that prohibits the posting of infringing content. Handle all DMCA complaints pursuant to your standard practices – hire a DMCA agent, put a compliance process in place – and…you can legally make money off of infringing content.
Now a word of warning. The Examiner case is only binding on courts in the 10 District. If you intend to launch a business based on this ruling, make sure to speak with legal counsel for guidance on how to set up the business with a minimum of risk. You should also buy a large insurance policy to pay for the attorney’s fees likely to be incurred when defending the lawsuits that will inevitably come your way.