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posted by martyb on Tuesday April 11 2017, @07:41PM   Printer-friendly
from the so-long-and-thanks-for-all-the-fish? dept.

This piece of news over at Ars Technica may have some startling implications.

The Digital Millennium Copyright Act's so-called "safe harbor" defense to infringement is under fire from a paparazzi photo agency. A new court ruling says the defense may not always be available to websites that host content submitted by third parties.

A Livejournal site hosted messages of celebrities, and a paparazzi agency that owns some of those photos took exception. Since the site moderated the posts that appeared, the appeals court ruled that just shouting "safe harbour" is insufficient - the court should investigate the extent to which the moderators curated the input.

As the MPAA wrote in an amicus brief:

If the record supports Mavrix’s allegations that LiveJournal solicited and actively curated posts for the purpose of adding, rather than removing, content that was owned by third parties in order to draw traffic to its site, LiveJournal would not be entitled to summary judgment on the basis of the safe harbor...

It's hard to argue with that: a site that actively solicits and then posts content owned by others seems to fall afoul of current copyright legislation in the USA.

But I can't help thinking of the impact this may have on SoylentNews.... if left to stand, this ruling could make running a site such as SN a very tricky line to walk.


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  • (Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @08:02PM (20 children)

    Don't fret yourself none. We only moderate stories and you were never going to see anything infringing in them anyways.

    --
    My rights don't end where your fear begins.
    Starting Score:    1  point
    Karma-Bonus Modifier   +1  

    Total Score:   2  
  • (Score: 3, Interesting) by tibman on Tuesday April 11 2017, @08:15PM (19 children)

    by tibman (134) Subscriber Badge on Tuesday April 11 2017, @08:15PM (#492431)

    I think they are saying that if a user posts a comment that involves copyrighted material then SN would be in trouble because it moderates the content. In LJ's case the moderators were just volunteers (like SN). Checkout this snippet:

    Etsy, Kickstarter, Pinterest, and Tumblr, in urging the appeals panel not to rule as it did, told the court that “under Mavrix’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."

    That means every site with comments is a step away from becoming 4chan. But hell, even 4chan has some moderation. What sites have zero moderation? Can't even think of one. Probably means Safe Harbor is unobtainable under that ruling.

    --
    SN won't survive on lurkers alone. Write comments.
    • (Score: 2, Insightful) by Anonymous Coward on Tuesday April 11 2017, @08:18PM (5 children)

      by Anonymous Coward on Tuesday April 11 2017, @08:18PM (#492434)

      What's the problem? 4chan has the most free speech of any site on the net.
      We should strive to be more like them.

    • (Score: 2) by LoRdTAW on Tuesday April 11 2017, @08:28PM (4 children)

      by LoRdTAW (3755) on Tuesday April 11 2017, @08:28PM (#492440) Journal

      I think they are saying that if a user posts a comment that involves copyrighted material then SN would be in trouble because it moderates the content.

      No. But IANAL so take the following with a grain of salt.

      Our comments are not reviewed and approved for posting by site moderators. We decide what to post and where to post it in the comments section. Afterwards, users can decide if they want to vote up/down the comment. Soylent comments are protected under safe harbor. If a user plagiarizes some content in a comment, soylent is protected by safe harbor so long as the offending content is removed.

      Posted news articles are not protected because the user has no control over what is posted, the mods do. So if TMB posts a plagiarized article (unbeknownst to him) with no credit or links, then soylent can get in trouble if the content owner decides to take action.

      • (Score: 3, Informative) by VLM on Tuesday April 11 2017, @08:38PM

        by VLM (445) Subscriber Badge on Tuesday April 11 2017, @08:38PM (#492445)

        So if TMB posts a plagiarized article (unbeknownst to him) with no credit or links

        I actually read the first ten pages of the judicial opinion and a better analogy would be if TMB were a paid employee of a site self describing itself as specializing in distribution of copyright violations and he posted a story that even the dumbest non-technical normie could tell was a violation like microsoft-property-(c)-windows-10-(tm).torrent as a story, and SN ran a shitton of ads on that torrent article making a pile of cash, then MS asked for a share of the ad revenue and SN said F you see you in court, because TMB is a member of the general public so you as a copyright owner can kiss my shiny metal DMCA ass, then, and only then, would SN get in trouble. Otherwise we're mostly safe, I think.

      • (Score: 2) by tibman on Tuesday April 11 2017, @08:41PM (2 children)

        by tibman (134) Subscriber Badge on Tuesday April 11 2017, @08:41PM (#492449)

        The issue wasn't with LJ blog owners posting copyrighted content. It was users commenting with copyrighted content. The volunteer moderators removed the "offending content" after they were told but Mavrix is arguing that because they were volunteers who originally approved the comments then it removes Safe Harbor status from livejournal. The court is now trying to figure out how much influence moderators have in the process of promoting (copyrighted?) content.

        Someone posts copyrighted material to SN. Moderators mod it up to get higher visibility. Copyright owner says take it down. SN admin takes it down. Copyright owner sues because it never should have been moderated up in the first place.

        --
        SN won't survive on lurkers alone. Write comments.
        • (Score: 2) by Scruffy Beard 2 on Tuesday April 11 2017, @09:16PM

          by Scruffy Beard 2 (6030) on Tuesday April 11 2017, @09:16PM (#492462)

          The ruling deals with moderated postings: every post goes through a moderator; with only about 30% being approved. The moderators not only moderate for content, but posts are required to include images; rather than just linking to third-party sites.

          The appeal court said that the lower court erred in dismissing the case with a summary judgement. It now goes back to the lower court for a re-hearing.

          Source:LiveJournal ONTD loses Copyright Safe Harbor from content moderation? #wtfu (Leonard French) [youtube.com] (1h9min38seconds)

        • (Score: 2) by LoRdTAW on Wednesday April 12 2017, @03:54PM

          by LoRdTAW (3755) on Wednesday April 12 2017, @03:54PM (#492827) Journal

          If we are talking about a comment then no because no moderator intervention is needed to approve the actual post. It is posted directly by the user. We can only vote it up/down to change it's score. We can't vote to delete a post or hide it permanently. Only the soylent crew has that ability.

          Article submissions are an example where we the users have no control. We can only submit content and then it's up to the editors to check and post them. That is where the safe harbor act ends.

    • (Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @08:50PM (7 children)

      Right but what they're calling moderation is a hell of a lot different than what we call moderation. Theirs actually control what's seen and what's not. Ours do not have that power and are in no way, shape, or form staff. Every registered user with over a month of time on the site gets moderator points here, so it's not even a volunteer thing.

      --
      My rights don't end where your fear begins.
      • (Score: 2) by tibman on Tuesday April 11 2017, @09:28PM (6 children)

        by tibman (134) Subscriber Badge on Tuesday April 11 2017, @09:28PM (#492469)

        Their volunteers are not staff in any way, shape, or form either. SN's moderation is different yes, but not so different that it isn't moderation. Ours is more granular. Comments can be disappeared or promoted to higher visibility. Obviously SN is different than LJ but not so different that this judgement wouldn't apply, imo.

        --
        SN won't survive on lurkers alone. Write comments.
        • (Score: 2) by The Mighty Buzzard on Tuesday April 11 2017, @09:38PM (2 children)

          Nah, if our moderators could actually disappear a comment it might be an issue. They can't. Any user at any time can see any comment. If they choose not to based on community rating of that comment, that's their choice and has nothing to do with the comment being visible to the wide world.

          --
          My rights don't end where your fear begins.
          • (Score: 2) by tibman on Tuesday April 11 2017, @10:40PM (1 child)

            by tibman (134) Subscriber Badge on Tuesday April 11 2017, @10:40PM (#492504)

            Visibility does matter. If it didn't matter then SN wouldn't need(want?) a moderation system. The moderation systems entire existence is to promote good content and hide bad content. More nuanced than LJs all or nothing approach, for sure.

            --
            SN won't survive on lurkers alone. Write comments.
        • (Score: 2) by https on Tuesday April 11 2017, @09:52PM (2 children)

          by https (5248) on Tuesday April 11 2017, @09:52PM (#492477) Journal

          Anyone and everyone can set their threshold to whatever the fuck they want, including +5 or -1. Heck, if I was feeling whimsical, I could set all "Funny" moderations to count as -6 and "Offtopic" to +6. Your notion of "disappeared" is probably wrong and at best irrelevant. The comments are still there.

          --
          Offended and laughing about it.
          • (Score: 2) by tibman on Tuesday April 11 2017, @10:38PM (1 child)

            by tibman (134) Subscriber Badge on Tuesday April 11 2017, @10:38PM (#492503)

            If it was irrelevant than why do people care that they are modded down? Visibility matters.

            --
            SN won't survive on lurkers alone. Write comments.
            • (Score: 2) by urza9814 on Wednesday April 12 2017, @03:55PM

              by urza9814 (3954) on Wednesday April 12 2017, @03:55PM (#492828) Journal

              It's irrelevant in this context to the site owner because they aren't actually removing any content. They aren't actually changing visibility. Moderation on SN is a purely additive process -- other users add extra information to a post, which gets sent to the viewer, who can configure their reader to interpret that additional information in whatever way they choose.

              The information *appears to* disappear, because that's what most users want. But it doesn't. It only gets more tags. The SN "moderation" system could more accurately be described as a "reaction" system or even "instant tagged replies". The moderation aspect is done by the end user, not site owners or staff or even volunteers. I think that IS actually a significant different. Moderators CAN'T hide a post here, no matter what they do. You might moderate a post as "Troll", intending to hide it, and instead it gets promoted because I've got a +6 modifier on Troll and there's not a damn thing you can do about it. So it would be pretty difficult to argue both that SN is responsible for the actions of moderators (who they aren't affiliated with) AND that those moderators are actually capable of controlling what is posted on this site.

              Another good comparison for SN moderation is ratings on reviews. If you view product reviews on Amazon, it often asks if a specific review was "Helpful". Then when other users view that product, the most "helpful" reviews are displayed first. Do those ratings also violate safe harbor by using user content to sort user content? I don't see how...