9th Circuit: 'Safe Harbor' Provision Protects Motherless.com

9th Circuit: 'Safe Harbor' Provision Protects Motherless.com
Rhett Pardon

PASADENA, Calif. — A federal appeals court yesterday, in a 2-1 decision, affirmed summary judgment in favor of adult tube site Motherless.com, which was sued six years ago for copyright infringement by the parent company of Pink Visual.

The gravamen of Pink Visual's claims in the long-running case was that Motherless and its owner, Joshua Lange, hadn't “reasonably” implemented effective procedures, including expelling repeat infringers, for dealing with DMCA-complaint notifications over poached content. 

Motherless is one of the largest adult tube sites on the web, and relies heavily on the DMCA for protection because of its vast number of user uploads. It has grown into a behemoth with 1.5 million daily visitors and about 23 million tube site entries since it started up in 2008.

In 2012, Pink Visual sued Motherless after its employees found 19 copyrighted films, including 33 scenes, owned by Pink Visual's parent company, Ventura Content, on the tube site.

The case, however, was dismissed in 2013 on summary judgment after U.S. District Judge Stephen Wilson in Los Angeles ruled that Motherless' operators were entitled to the Digital Millennium Copyright Act's safe-harbor provisions as an internet service provider.

The issue in the case was the applicability of “safe harbor” provisions of the DMCA, which provides a defense where there is a copyright infringement “by reason of the storage at the direction of a user,” as well as various other requirements are met.

The 9th U.S. Circuit Court, in its majority opinion, rejected Pink Visual’s contention that Motherless.com exercised such tight control over the content that it, and not its third-party users, were responsible for the postings.

Pink Visual contended in court proceedings that Motherless.com wasn’t merely a passive receptacle of postings over which it exercises no control.

But Judge Andrew J. Kleinfeld, who wrote the majority opinion, said that Motherless owner “Lange and his contractors did not upload any of the 33 clips over which Ventura claims copyright ownership.”

“The material on the website was stored at the direction of users, who decided what to post,” Kleinfeld wrote for the 9th Circuit majority. “The defendants did not have actual or apparent knowledge that the clips were infringing, and they expeditiously removed the infringing material once they received actual or red flag notice of the infringement.

“The defendants also did not receive a financial benefit directly attributable to infringing activity that they had the right and ability to control. In addition, the defendants had a policy of excluding repeat infringers from the website.”

Kleinfeld wrote in the opinion that “safe harbor” eligibility does not require perfection, just “reasonable” implementation of the policy “in appropriate circumstances.”

“Eligibility for the safe harbor is not lost just because some repeat infringers may have slipped through the provider’s net for screening them out and terminating their access,” Kleinfeld wrote. “The evidence in the record shows that Motherless terminated between 1,320 and 1,980 users for alleged copyright infringement and that only nine alleged repeat infringers had slipped through.

“Of those nine, only six were before [Pink Visual] filed its lawsuit, and only four of the six had been the subject of more than one DMCA notice. That suggests that less than one repeat infringer in 100,000 active users was missed. If that is the extent of failure, there could be no genuine issue of material fact as to whether Motherless 'reasonably implemented' its termination policy.

“Congress used the word ‘reasonable’ to modify ‘implemented,’ so the phrase cannot be construed to require perfect implementation."

The 9th Circuit, however, said that Pink Visual’s claims weren’t frivolous and refused Motherless.com’s arguments to award attorneys’ fees from the company.

“[Pink Visual’s] motivation was not improper, nor was there a need to deter the claims that [Pink Visual] made. It had, after all, been the victim of copyright infringement and sued parties that played a role in the infringement. It was thwarted only because of the complexities of the safe harbor rules that had not yet been fully explicated in the case law.”

Dissenting in the ruling, Judge Johnnie Rawlinson wrote that there were triable issues of material fact as to whether Motherless qualified for the safe harbor.

“From my reading of the record, a gargantuan issue of fact was raised by [Pink Visual] regarding Motherless’/Lange’s compliance with the requirement that the service provider adopt, implement and inform subscribers and account holders of the policy providing for termination of repeat infringers to merit safe harbor protection from copyright infringement,” Rawlinson wrote.

“The majority concedes that Motherless/Lange has adopted no written or publicized policy that may be used to instruct regarding the expulsion of repeat infringers. The majority excuses this deficiency by noting that ‘there are no employees to instruct.’ However, there is at least one independent contractor who, together with Lange, reviews all the photographs and videos before they are uploaded to the website.

“If, as the majority concedes, there is no written policy to instruct the independent contractor regarding repeat infringers, at a minimum a material issue of fact is raised regarding compliance with that requirement of the safe harbor provision.”

At XBIZ post time it wasn't determined whether Pink Visual would seek a rehearing.