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> They didn't lose protection. You've being overly pedantic. > They simply failed to establish such protection at the summary judgment stage. Of course. They

by pdkl95 10y ago

> They didn't lose protection. You've being overly pedantic. > They simply failed to establish such protection at the summary judgment stage. Of course. They lost the ability to use the standard affirmative "safe harbor" defense that many internet services currently rely on. At least one copyright lawyer believes[1] this may have significant implications for other places that moderate user content. Reddit and YouTube were specifically mentioned as possibly affected due to their own appointment of moderators. Obviously, the details are decided in the retrial. However, the previously mentioned lawyer[1] suggests this puts LiveJournal in a poor position that encourages them to settled out of court, leaving the practical utility of safe harbor uncertain when appointed moderators are involved. > DMCA safe harbor is an affirmative defense. Yes, that was a key part of opinion. > an employee of the defendant Agent of the defendant, which includes non-employee unpaid positions. Regardless, I agree that the status of the moderators is indeed the central issue. > on its face it seems unsupportable. I agree, and so did the 9th circuit appellate court. That district covers YouTube and a lot of other internet businesses, which ads a lot more uncertainty for any of those businesses that moderate content and might be seen as having an agency relationship with their moderators. [1] https://www.youtube.com/watch?v=R48QHBakioI https://www.youtube.com/watch?v=R48QHBakioI

dragonwriter 10y ago
> You've being overly pedantic. No, he's pointing out an enormous distinction. > They lost the ability to use the standard affirmative "safe harbor" defense that many internet services currently rely on. No, they retain the ability to use it. It's just that, at summary judgement (which views all disputed factual questions in the light least favorable to the party seeking summary judgement) their success in using that defense has not been established. Which means that the elements of the defense will need to be established at trial, which is the norm for an affirmative defense. > Obviously, the details are decided in the retrial. Trial, not retrial. There was no first trial; the district courts (now reversed) summary judgement decision occurred before trial. > That district covers YouTube and a lot of other internet businesses, which ads a lot more uncertainty for any of those businesses that moderate content and might be seen as having an agency relationship with their moderators. Lots of sites with user-submitted content that have moderators engage in reactive moderation; LiveJournal, with ONTD, had moderator pre-clearance of content for posting. Even if moderators are agents, if they aren't approving content to be posted, their existence doesn't raise the issue that the content may be posted at the direction of the site owner (via an agent) rather than the outside user. It might raise issues of red-flag knowledge, but without blanket pre-clearance of the type LiveJournal practice, even if the content itself has somethibg like watermarks that would make a strong case for any viewer having red-flag knowledge, and the site has moderators that are unmistakably agents, it'll be much harder to make the case that the site had red-flag knowledge. LiveJournal really seems to be in different position here than many sites with moderators.

by pdkl95 10y ago

dragonwriter 10y ago

> You've being overly pedantic. No, he's pointing out an enormous distinction. > They lost the ability to use the standard affirmative "safe harbor" defense that many internet services currently rely on. No, they retain the ability to use it. It's just that, at summary judgement (which views all disputed factual questions in the light least favorable to the party seeking summary judgement) their success in using that defense has not been established. Which means that the elements of the defense will need to be established at trial, which is the norm for an affirmative defense. > Obviously, the details are decided in the retrial. Trial, not retrial. There was no first trial; the district courts (now reversed) summary judgement decision occurred before trial. > That district covers YouTube and a lot of other internet businesses, which ads a lot more uncertainty for any of those businesses that moderate content and might be seen as having an agency relationship with their moderators. Lots of sites with user-submitted content that have moderators engage in reactive moderation; LiveJournal, with ONTD, had moderator pre-clearance of content for posting. Even if moderators are agents, if they aren't approving content to be posted, their existence doesn't raise the issue that the content may be posted at the direction of the site owner (via an agent) rather than the outside user. It might raise issues of red-flag knowledge, but without blanket pre-clearance of the type LiveJournal practice, even if the content itself has somethibg like watermarks that would make a strong case for any viewer having red-flag knowledge, and the site has moderators that are unmistakably agents, it'll be much harder to make the case that the site had red-flag knowledge. LiveJournal really seems to be in different position here than many sites with moderators.