Moderating Your User’s Website Posts Could Cause You To Lose Your Safe Harbor

If your website has a DMCA notice it creates a safe harbor against copyright infringement suits providing that copy or photographs are posted at the direction of a user.

Recently, in the case of Mavrix Photographs LLC V. Livejournal Inc, the court ruled that it was a question of fact for a jury to decide if Livejournal;s use of volunteer moderators who could approve or disapprove of posts created a situation where the posting was augmented by Livejournal who would then lose their safe harbor.

The court also discussed the remaining elements of the safe harbor affirmative defense. If an internet service provider shows that the infringing material was posted “at the direction of the user,” it must then also show that (1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not financially benefit from infringements that it had the right and ability to control.

Therefore, it is my suggestion that you do not pre-screen posts by your website users to maintain your safe harbor.

The same can be said for your Section 230 safe harbor for general posts by your users. Do not pre-screen these posts. If a post is reported to you for violating your site’s TOS you can certainly remove it, but do not pre-screen the posts.

Please feel free to contact me with any questions you may have concerning these issues.