You would think, with the DMCA rapidly approaching its 20th anniversary of becoming law, that nearly every idea, word, phrase and concept of the law would have been tested in some court case or another. You’d be wrong. In a new ruling from earlier this week, a district court in Colorado noted that there are no cases that actually examine what is truly meant by the word “user” in the DMCA’s safe harbor related to the posting of infringing content. If you’re playing along with the home game, we’re talking about 512(c), the part of the DMCA that provides safe harbors for service providers that host content. This is the key part of the DMCA safe harbor, and the one that has made it possible for basically all user-generated content platforms possible. And yet, no one has actually challenged the definition of “user” in the law. The specific part of the law reads as follows:
(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Seems straightforward enough, right? A service provider is not liable for things done by a user if they meet certain criteria. And nearly all of the lawsuits to date have been about whether or not those criteria apply (or whether a site qualifies as a “service provider”). But what is a “user”?
The case in question involves the content-farm like news site Examiner.com, which famously lets almost anyone pretend to be a reporter and publish articles that look like semi-legit news articles, even if there’s basically no vetting at all beyond an initial screening by which the company tries to determine if you can put words together in coherent sentences. Over the years, Examiner.com has been often mocked as a source of absolutely ridiculous articles. But what if an Examiner.com writer infringes on someone’s copyright by posting unauthorized photos? That’s at the heart of BWP Media v. Clarity Digital Group (owners of Examiner.com).
Examiner argues that it should not be held liable, as the infringing content was posted by a user. BWP Media, which operates as Pacific Coast News, and the National Photo Group argued that because Examiner does at least some vetting of people who can post, provides them some instruction about the types of articles they can post and because it compensates them based on traffic to the articles, the people who post on Examiner.com are not “users” under the DMCA, but are really more like employees of the company, which would make the company itself liable. Thankfully, the court disagrees, and notes that there is nothing in the law that supports that interpretation:
Plaintiffs argue that the term “user” cannot be interpreted in this way because “[o]wners, employees and agents are typically users of their business’ website” and “courts have already found that owners, employees, agents (and even implied agents) are not ‘users’ within the meaning of the DMCA safe harbor provisions.”…. Therefore, plaintiffs claim that “case law dictates that the word ‘user’ is a legal term of art for purposes of applying the safe harbor provisions of the DMCA.” … There are several problems with this argument. First, plaintiffs assume that the word “user” cannot be given its plain meaning because there is a need to distinguish between storage at the direction of the service provider and storage at the direction of third parties and that such distinction should be made through the interpretation of “user.” However, as other provisions of § 512 demonstrate, Congress knew how to make such a distinction without mentioning “user.” Both §§ 512(a)(1) and 512(b)(1)(A) utilize the phrase “a person other than the service provider” to differentiate between the service provider and other persons. More specifically, § 512(a)(1) uses the phrase “at the direction of a person other than the service provider,” which is analogous to the distinction that plaintiffs urge be made through the definition of “user” in § 512(c)(1). The fact that Congress elsewhere in the statute made the distinction between service providers and third parties with different words cautions against plaintiff’s interpretation.
In other words, if Congress meant that no one who gets money or works closely with an organization could be deemed a “user,” it could have and would have said so. Thus, someone that closely tied to a company can still be deemed a user under the DMCA. The court looks deeper at the law and notes that the concerns that the copyright holders raise about what would happen if “user” was defined this way don’t really make sense, because actions that deeply involve the company itself are already clearly written out of the DMCA’s safe harbors in other sections.
Overall, this is a good ruling. A ruling in the other direction would have raised serious questions about a number of platforms — especially those that may provide some form of compensation to users. But just because a site provides compensation shouldn’t automatically mean that the site loses safe harbor protections. Doing so would create serious concerns about how these platforms could develop, and would greatly limit the ability to allow user generated content platforms to also help people make money or become “professional” content creators. That would be a ridiculous result that would clearly go against the intention of copyright law.