(Photo: Katy Perry)
A photo agency that sued the owner of online tabloid “Oh No They Didn’t!” for copyright infringement is hoping to reverse a ruling that threw out its case, prompting Etsy, Pinterest and others to weigh in and argue that reviving the case could erode legal protections afforded to Internet service providers.
A lawyer for Mavrix Photographs LLC, which supplies celebrity photos – including candid shots of Katy Perry, Beyoncé and Kim Kardashian – to publications like People and Us Weekly, told the U.S. Court of Appeals for the Ninth Circuit earlier this month that a California judge’s summary judgment ruling in 2014 should be reversed because LiveJournal Inc., the owner of ohnotheydidnt.livejournal.com, took an active role in posting more than 40 of its copyrighted photos.
In taking an active role in posting the photos, the agency argued, LiveJournal was not protected under the U.S. Digital Millennium Copyright Act, which shields Internet service providers from copyright infringement claims. For its part LiveJournal maintains it plays no role in deciding what gets on the site, which relies on third parties to submit photos.
Oral arguments were Oct. 7.
LiveJournal has a noteworthy list of amicus supporters: Pinterest, Etsy and the Electronic Frontier Foundation.
But Mavrix has the support of BWP Media USA Inc., a paparazzi shop that does business as Pacific Coast News and, like Mavrix, has prolifically sued in recent years over “rampant piracy of its copyrighted photographs,” according to an amicus brief it filed in the case.
“There has been a massive proliferation of websites out there trafficking and publishing in celebrity content,” said Mavrix attorney Peter Afrasiabi of One LLP in Newport Beach, California. “What that’s done is devastated the photo agency business model because their clients like People magazine come back to them and say, ‘We won’t pay that for those photos. They’re everywhere already.’”
LiveJournal attorney Wayne Barsky, co-chairman of the intellectual property practice group at Gibson, Dunn & Crutcher, declined to comment.
Mavrix filed its suit against LiveJournal in 2013. The next year, U.S. District Judge Cormac Carney found no infringement on the part of LiveJournal, which “merely provides an online platform.”
In defending that ruling, LiveJournal says it provides storage for the community-based site, which relies on volunteer “maintainers” and users who create their own rules and decide what gets uploaded.
Mavrix’s arguments “would have pernicious consequences for online services and their users,” wrote Brian Willen, a New York partner at Wilson Sonsini Goodrich & Rosati, in an amicus brief filed by online service providers Etsy, Kickstarter, Pinterest and Tumblr.
“Under Matrix’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,” he wrote.
But Mavrix claims that LiveJournal is actively involved in deciding which photos get on its site through an employee acting as editor and eight “moderators,” who serve as its “agents.” The agency attempted to differentiate LiveJournal from sites like YouTube, which merely hosts a forum for users to upload their photos. In 2013, the Ninth Circuit ruled that Veoh Networks Inc. was protected under the DMCA, and in 2012, the U.S. Court of Appeals for the Second Circuit came out with a similar ruling for YouTube, now owned by Google Inc.
Sites like “Oh No They Didn’t!,” Afrasiabi said, “are built around generating ad revenue and driving traffic. This raises the newer issues that are more complicated than those used in the YouTube or Veoh cases.”