Plaintiff, an adult film producer, discovered on defendant’s user-upload website, Motherless.com, 33 clips from movies plaintiff had created and for which it held the copyright. Defendant Motherless, run by its sole employee Joshua Lange, hosted over 12.6 million mostly pornographic pictures and clips, nearly all uploaded by the site’s users. Plaintiff sued both Motherless and Lange for copyright infringement, having never sent a takedown notice before filing suit.

Defendant moved for summary judgment, arguing that it was shielded from liability by the safe harbor provision of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c). That provision protects qualifying service providers from monetary liability for infringing material stored at the direction of users, provided several statutory conditions are met.

The district court granted summary judgment in favor of defendant. Plaintiff sought review with the Ninth Circuit. On appeal, the court affirmed.

The court worked through each element of the DMCA safe harbor. It first held that the clips were stored “at the direction of a user,” because defendant did not select content beyond screening out illegal material, which § 512(m) expressly permits. The website’s users, not defendant, decided what to upload.

On knowledge, the court found neither actual nor “red flag” awareness of the infringement. The clips bore no marking identifying plaintiff as the owner, the few watermarks pointed to other aggregators, and professional quality did not make infringement obvious. The court stressed that apparent infringement must be objectively obvious as to the specific clips at issue, not merely suspected.

Defendant also satisfied the remaining conditions. It removed all 33 clips the same day plaintiff finally supplied the URLs, satisfying the expeditious takedown requirement. It received no financial benefit directly attributable to the infringing clips, and it reasonably implemented a repeat infringer policy, having terminated well over a thousand users while only a handful slipped through.

The practical lesson is a familiar one. A copyright owner facing a functioning notice-and-takedown system gains little by suing first and notifying never. Plaintiff forfeited the strongest evidence of the provider’s knowledge – the takedown notice itself – and that omission ran through nearly every element of the safe harbor analysis.

Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir., March 14, 2018)