Independent Contractor Content Providers Ruled DMCA Safe Harbor Users

BWP Media owns the rights to a number of celebrity photographs.  BWP sued Clarity Digital Group (n/k/a/ AXS) for copyright infringement when 75 of BWP’s photos appeared without BWP’s permission on Examiner.com, a website owned by AXS.  AXS argued it was protected from liability by the Digital Millennium Copyright Act (DMCA) safe harbor.  The district court agreed and granted AXS’s motion for summary judgement.  The Tenth Circuit affirmed.

Section 512 of the DMCA provides safe harbor protection from copyright infringement liability to online and internet service providers (ISPs), if certain requirements are met.  At issue in this case were 512(c)(1)(A)(i) –(ii), requiring that the ISP not have actual knowledge of the infringement or know of facts or circumstances from which infringing activity is apparent, and 512(c)(1)(A)(iii), requiring the ISP to expeditiously remove or disable infringing content when the ISP becomes aware of it. 

AXS’s Examiners are users under the DMCA.

“Examiner.com characterizes itself as a ‘dynamic entertainment, news and lifestyle network that serves more than 20 million monthly readers across the U.S. and around the world.’”  (Opinion pdf page 4).  Examiner.com’s content is created by independent contractors, “Examiners,” that have been screened by Examiner.com.  Examiner.com’s Examiners sign a contract stating that the Examiners are independent contractors and prohibiting copyright infringement. 

BWP argued that Examiner.com’s Examiners were not users.  An initial safe harbor requirement is that the infringing content be stored at the direction of a user. 

The word ‘user’ in the DMCA is straightforward and unambiguous. Simply put, a ‘user’ is ‘one that uses.’  In the DMCA context, we agree with the district court that the term ‘user’ describes a person or entity who avails itself of the service provider’s system or network to store material. We note that opinions interpreting the DMCA’s safe harbor provisions have not exhaustively defined the term, suggesting apparent clarity.

(Opinion pdf pages 6 – 7).

The Tenth Circuit noted that no class of individuals is inherently excluded by the word “user,” rejecting BWP’s arguments to narrow the interpretation of “user.” The Tenth Circuit also saw no reason to deviate from the AXS contract language describing the Examiners as independent contractors, rejecting BWP’s arguments that the Examiners are either agents or employees of AXS.

The infringing material was not stored at the direction of AXS.

An ISP that directs the storage of the infringing content does not qualify for safe harbor protection. 

BWP argues that even if Examiners are ‘users,’ AXS cannot rely upon the safe harbor because it directed the Examiners to post the infringing content. According to BWP, AXS created this control by issuing instructions on the general topics Examiners were to write about, actively soliciting new articles, and suggesting that Examiners include slide shows or pictures to accompany articles. BWP, however, fails to explain how this evidence crosses the chasm between encouraging the Examiners to post pictures with articles and encouraging Examiners to post infringing content. Not only did AXS make clear copyright infringement was prohibited, it also provided Examiners with licensed photographs to accompany their articles. No reasonable trier of fact could find that the infringement was at the direction of AXS.

(Opinion pdf page 11).

AXS did not have actual or circumstantial knowledge of the copyright infringement and therefore, is not disqualified from safe harbor protection.

The Tenth Circuit ruled that AXS was not willfully blind to the infringement. 

There is nothing in the record showing that AXS encouraged the Examiners to post infringing material. There is also nothing in the record showing that AXS ignored signs or circumstances suggesting copyright infringement was occurring on Examiner.com. Although BWP is correct in stating AXS encouraged Examiners to incorporate photographs into articles, AXS provided Examiners a legal means by which to accomplish this. Examiners have access to a photo bank full of images for which AXS owns the licenses. Prior cases also clearly establish that merely hosting a category of copyrightable content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual knowledge requirement under § 512(c)(1)(A)(i).

(Opinion pdf pages 12 -13).

This case is BWP Media USA, Inc., v. Clarity Digital Group, LLC, No. 15-1154, Tenth Circuit Court of Appeals.

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