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Website’s Procedures Sufficient for DMCA Safe Harbor Protection

(March 16. 2018) A website that allows anyone to post videos and images, includes in its terms of use a prohibition against posting copyrighted material, and upon notice promptly takes down infringing materials is protected from copyright infringement liability under the Digital Millennium Copyright Act (“DMCA”).

Ventura Content, Ltd., which creates and distributes pornographic movies, found 33 clips of its materials on Motherless, Inc.’s website. Ventura did not send a take-down notice to Motherless but instead filed a copyright infringement action. Motherless asserted it was shielded from liability under the safe harbor provisions of the DMCA. The trial court granted summary judgment to Motherless and the appellate court affirmed.

Motherless allows users to upload videos and images, many of which are pornographic. Motherless does not pay for the uploaded videos but rather receives revenues from advertising. The website’s terms of service prohibit the uploading of copyrighted materials without permission, provides a mechanism for sending takedown notices, and deletes infringing materials upon notice.

After finding 33 video clips with its content, Ventura filed for copyright infringement. Upon receiving a copy of the lawsuit, Motherless asked Ventura for the URLs of its material but Ventura did not respond. Only after Motherless sent a second request did Ventura provide the information and Motherless immediately took down the clips.

The issue in the case was whether Motherless is a “service provider” under the DMCA and observed the requirements to fall under the “safe harbor” provisions of the DMCA. There was no question but that the Ventura clips had copyright protection.

The appellate court observed that, for “a service provider to get safe harbor protection despite its infringement, it must not know of the infringement, and the infringement cannot be apparent. It must also take down or prevent access to the infringing material as soon as it learns about it or receives a DMCA notice. It also must not directly benefit financially from the infringement in situations where it can control the activity.”

The appellate court concluded that Motherless followed the DMCA guidelines to qualify under the safe harbor provisions, although the court admitted that the website’s procedures were not formally written. The videos contained no watermarks to indicate that they were copyrighted and there was no evidence that Motherless knew the materials were infringing.

It did not help Ventura that it did not send a take-down notice. “Ventura’s decision to forgo the DMCA notice protocol stripped it of the most powerful evidence of a service provider’s knowledge—actual notice of infringement from the copyright holder. If Ventura had notified Motherless about these 33 infringing videos before filing this lawsuit and Motherless had not taken them down, then Motherless would have lost its safe harbor.”

Avoiding and addressing copyright infringement on the internet requires precise knowledge of the DMCA safe harbor provisions and its take-down notice requirements. Balough Law Offices has successfully assisted both copyright owners and internet service providers in this area.

Ventura Content, Ltd. v. Motherless, Inc. et. al, Ninth Cir. No. 13-56332 and 13-56970, issued March 14, 2018.

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