In theory, a moderator is a sound idea for any individual running a website that allows user interaction. Presumably, moderators can filter out comments and content that is disreputable, disrespectful, and patently offensive. The moderator can keep discourse civil and help foster insightful positions. Perhaps the website can even rely on volunteer moderators who are bound by the website’s rules and regulations. However, the moderator’s very existence risks making a website’s owner subject to liability for copyright infringement. These questions were recently addressed in a case involving LiveJournal. What is this case about? Why could a volunteer moderator trigger legal liability? Are there any guidelines to determine risks?
Mavrix Photographers, LLC v. LiveJournal, Inc.
This case is one arising out of the United States Court of Appeals, For The Ninth Circuit, regarding the potential liability of LiveJournal over an alleged infringement of twenty different photographs. LiveJournal is a social media website, which sets up various forums for different communities. The communities can post and comment on a theme and are allowed to create their own rules in addition to LiveJournal’s rules and regulations. The photographs were then published to a sub-forum on the website, focusing on celebrity news. The photographs were watermarked, and subject to copyright by the photographer. However, one issue was how LiveJournal used its moderators.
Moderators, per the company’s policy, would review and approve content such as images. They would go over the content to make sure it abided by LiveJournal’s policies, as well as the policies for the group. In addition, one moderator in the group was given greater authority, and was paid by LiveJournal. This moderator was assisted by other volunteer moderators, and individuals chosen within the community to determine who would be running things. However, due to a lack of discovery, it was unclear to the court exactly how much the moderators were tied to LiveJournal, muddying whether or not they were actually responsible for them.
Principal-Agency Relations and Red Flag Knowledge
In fact, similar to the Vimeo case we’ve discussed beforehand, at issue was red flag knowledge–i.e., infringement that is blatantly obvious to the ordinary person. In Vimeo, the issue was if the moderators could/should have known there was copyright infringement of the songs. Here, this does not particularly seem to be the issue with the court as the images were watermarked. Yet, the focus is if the moderators could even pass that red flag infringement onto LiveJournal.
To establish liability, the moderators would have to be agents of LiveJournal as their principal. To determine this, the court in Mavrix used a two-part test of implied authority and actual control. In Mavrix, the court was uncertain due to scant information on the members of the moderating staff. However, factors that contributed to the two prongs included: (i) what the site owner allowed the moderators to do; (ii) how important they were to the business model; (iii) appointing and removing moderators at will; (iv) adding moderators to ensure there was a moderator on shift constantly; and (v) how much control the moderators had over their own personal schedules.
Applying it to actual businesses, this would imply that while a paid moderator who is directly accountable to the website owner would be more likely to impute red flag knowledge. In comparison, any volunteer moderator who would be less restrained by the website would be less likely to be directly accountable.
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