U.S. Justices Won't Hear DMCA Safe-Harbor Case Waged by Pink Visual

WASHINGTON — The U.S. Supreme Court on Monday denied Pink Visual’s petition to review its copyright infringement lawsuit against adult tube site Motherless.com.

Pink Visual’s parent, Ventura Content, had sought a decision by justices in a case that focused plainly on the Digital Millennium Copyright Act's safe-harbor provisions.

The adult company, once a commanding web platform for original adult content, alleged Motherless.com hadn't implemented effective procedures, including expelling repeat infringers, for dealing with DMCA-complaint notifications over stolen content. It contended in court proceedings that Motherless.com wasn’t merely a passive receptacle of postings over which it exercises no control.

Pink Visual sued Motherless after 19 copyrighted films, including 33 scenes, owned by the web platform, were found on the adult tube site.

In its petition that was denied by the court on Monday, Pink Visual’s counsel, Peter Afrasiabi, told U.S. justices that review of the case was warranted because a split exists in U.S. appeals courts on the meaning of a “reasonable termination policy for repeat infringers” under 17 U.S.C. § 512 (i), which spells out conditions for eligibility in regards to liability relating to material online.

It also said that review is warranted on 17 U.S.C. § 512 (c) over liability in regards to where information resides on systems and networks.

“Because the 9th Circuit has eviscerated the principle that actual and apparent knowledge of mass infringing activity using one’s wares serves as a basis for copyright liability of Grokster,” Afrasiabi said.

The high court’s ruling in Grokster held that peer-to-peer file sharing companies can be sued for inducing infringement for acts taken in the course of marketing file-sharing software.

Prior to the appeal at the 9th U.S. Circuit Court of Appeals, the case 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 DMCA's safe-harbor provisions as an ISP.

Afrasiabi, in a brief to the Supreme Court to take up the case on behalf of Pink Visual’s parent, said that federal courts are creating “a new monster” by allowing full immunity to online pirates.

“The lower courts, acting out of a fear of derailing the internet’s development have instead given birth to a new monster: the online service provider publisher that is brazenly rich only from others’ content, never pays for any content it publishes, knows the content is infringing, has full control over what is published on its platform, does not have to terminate known repeat infringers because unwritten ‘I know repeat infringement when I see it’ policies suffice, and thus enjoys full immunity from copyright law,” Afrasiabi wrote.

“It is time for this court to bring balance to the DMCA, which never intended, nor facially permits, such staggering dissonance between online and offline liability standards.”

On Monday, however, hopes of a high court review of the DMCA's safe-harbor provisions were dashed.