Intellectual Property

Motherless Content: The DMCA Copyright Safe Harbor Strikes Again

Perhaps the ruling here would've been different if the case didn't involve pornography.

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Whenever a new technology emerges, the entrepreneurs from the world of erotica are often amongst the early adopters. These pioneering pornographers find a way to deploy the nascent technology in their pursuit of depicting human interaction in new and interesting ways. As a result, a disproportionate amount of copyright jurisprudence has emerged from cases in which some type of porn was the copyrighted work at issue.

Whether this works, consciously or subconsciously, to devalue content claims and create somewhat negative precedent for copyright holders is an open question. A judge considering a case alleging infringement of the copyrights in the the famous Mona Lisa painting may reach a more artist-friendly result than in a case involving the less well-known and much more prurient Moaning Leeza adult film. Of course, Mona Lisa is outside of copyright protection and in the public domain and is free to use by anyone for any purpose, but the point remains the same: porn, no matter how tasteful and beset with rich dialogue, is often seen as a lesser type of creative expression. To wit, we are seeing the term “creepy porn lawyer” being used as an epithet against Stormy Daniels’s attorney.

Yet, porn remains exceedingly popular, as do ways to access it without paying any pesky fees to its creators. And a website operator can attract viewers and clicks and the resultant revenues much better with a trove of pornography than with content depicting Mona Lisa and her ilk. As a result, there are many cases in which porn creators seek to enforce their copyrights.

Of this multitude of cases, there are very few important matters in which the porn creators have won and many in which they have lost. The most recent of these is Ventura Content Ltd. v. Motherless, Inc., in which a split Ninth Circuit panel recently held in favor of Motherless, which runs a website that boasts “over 12.6 million mostly pornographic pictures and video clips,” all or most of which were uploaded by the site’s users, who “may or may not have created the material.” Hundreds of thousands of viewers visit this site for their various needs. Motherless makes some money by selling subscriptions to the site and most of its money by selling advertising on the site.

As you might imagine, the vast majority of the content on Motherless is purloined porn, copied from various locales and uploaded to Motherless’s servers without the permission of the filmmakers or participants. One of these filmmakers was Ventura Content, which creates and distributes its films as part of its ongoing business. Ventura Content took issue with Motherless publishing about three dozen of its films and brought suit.

Motherless escaped liability for posting Ventura’s content without permission, and profiting from same, by triggering the 17 U.S.C. § 512 shield. To hide within this so-called “safe harbor,” an alleged pirate must prove that it does not have actual knowledge, or an awareness of facts and circumstances making apparent, that the material on its site is infringing; remove said material upon notice; and, crucially, establish that it “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.”

This final dual factor requires the alleged infringer to prove both that it does not control the publication of the infringing material and does not receive financial benefits from said publication. It is hard to see how Motherless made that showing here and almost impossible to conclude that they made that showing as a matter of law and beyond disputed fact, as was required for the Ninth Circuit to affirm Motherless’s summary judgment victory.

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It is hard to so fathom because the facts in Motherless establish a large degree of control over the infringing film uploads. The owner of Motherless confirmed that he and a colleague reviewed the pictures and videos that were displayed on the site and used software to generate thumbnails of each picture and video clips. He also confirmed that he “spends three to six hours a day, seven days a week, looking at the uploads, and he estimates that he reviews between 30,000 to 40,000 images per day.” That is a lot of porn. And it is a lot of control over the content on his site.

But, despite the above and the fact Motherless literally paid its users to upload content, the Ninth Circuit found that Motherless did not have the “right and ability” to control the publication of the content on its site. Its analysis on this issue is peculiar. For example, one reason it finds no control is that the site’s owner did “not curate uploaded content in any meaningful way[.]” The right and ability to control and actual curation are two very different things, to be sure. The court did not find that Motherless did not have the “right or ability” to curate (as required), but that it did not actually curate (which is not the standard). And “control” as used in the statute does not require that the site operator pick and choose the content.

This approach creates a bizarre disincentive for website operators. If one wants to ensure the viability of safe harbor protection, he or she will refrain from editing or curating or otherwise organizing and ordering its content in such a way to make it more appealing to the viewer, lest such activity deprive the site of its safe harbor. In other words, a jumbled mass of raw content in various states of dishevelment and disarray are encouraged.

The court also somehow reached the conclusion that the site did not receive a financial benefit from the infringing content, and did so despite acknowledging that “the more pornography Motherless had, the more users it would attract, and more views would lead to more advertising revenue.” And despite the fact that Motherless charged subscription fees to view its content, most if not all of which was infringing material.

The court sidestepped these facts by noting that the benefit must be “distinctly attributable” to the infringing content. It is hard to fathom how the site’s revenues — received from advertisers that wanted to put their ads directly adjacent to the content and subscribers who pay for access to the content — are not distinctly attributable to the infringing porn uploads. But, alas, under this rubric, only sites that directly sell copies of the infringing work or charges a fee to access a specific work (as opposed to a large collection of works) would receive a “financial benefit” for purposes of the statute, which does not comport with the spirit or the letter of the statute.

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The massive semantic contortions in which the court engaged to fit Motherless’s business into the DMCA safe harbor were improper given that, as the dissent noted, “its parameters should be construed narrowly.” This narrow exception was expanded here to encompass a site that screens and edits the third-party content and then charges viewers and advertisers for access, which goes way beyond the pale.

The dissent also takes the majority to task for finding that Motherless’s repeat infringer policy was adequate. Such a policy is also required for the safe harbor to apply and Motherless’s story in this regard was ever-changing, with each version falling short of meeting the summary judgment standard. This includes Motherless’s “I delete any infringing content I can find” policy, which was credited by the majority. The majority noted the lack of a formal policy and the evidence showing repeat infringers’ continuing posting of infringing material, but then relied on “the paucity of proven failures to terminate” to affirm the summary judgment ruling. But, that paucity existed because Motherless employed a policy that was not really a policy and maintained insufficient records from which failures to terminate could be gleaned.

There is also the basic implausibility of Motherless’s contention that it was completely unaware that its viewers, who were uploading thousands of porn films, did not have licenses or other rights in the films being uploaded. This would mean that production companies and filmmakers were uploading their own work, work for which they charged fees, to the Motherless site. No reasonable person could believe such a thing.

Despite the above, Motherless’s business model was given a pass by the Ninth Circuit. Had Marvel or Disney been the plaintiff here, and had Motherless’s site exploited without permission the Avengers, Iron Man, Thor, and other mainstream titles instead of pornography, one can imagine the result being different.

Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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