This is the second in a series of blog articles relating to the topics to be discussed at the 30th Annual Media and the Law Seminar in Kansas City, Missouri on May 4–5, 2017. Blaine C. Kimrey and Bryan K. Clark of Vedder Price are on the planning committee for the conference. In this article, we discuss a recent Ninth Circuit decision relating to the summary judgment standard for a Digital Millennium Copyright Act (“DMCA”) affirmative defense. The ins and outs of the DMCA will be among of the topics at the 2017 seminar.
Earlier this month, the Ninth Circuit issued a ruling that will make it more difficult for Internet service providers to rely on the DMCA safe harbor to prevail at the summary judgment stage. In Mavrix Photographs, LLC v. LiveJournal, Inc., Case No. 14-56596 (9th Cir. April 7, 2017), the court overturned the district court’s summary judgment finding for the defendant, ruling that the common law of agency applied and there was a genuine issue of material fact as to whether the moderators at issue in this case were “agents” of the defendant. This finding will make summary judgment harder to achieve for Internet service providers and may make them rethink the roles that moderators play in assessing content on their Web sites.