A decision from the Ninth Circuit Court of Appeals in April raised concerns about website owners’ liability for copyright infringement—in content that website users post. The decision, Mavrix Photographs, LLC v. LiveJournal, Inc., says that online providers might not be able to use the safe harbor that the Digital Millennium Copyright Act (DMCA) provides if they moderate the content. The act protects websites from copyright infringement claims for user-posted content.

Now, the Computer and Communications Industry Association, Google, and Facebook have asked the court to rehear the decision. The case involves a copyright issue with photos of Beyoncé that a user posted on a LiveJournal celebrity gossip site. The decision raises the question of whether the site’s use of moderators to review users’ posts—for compliance with the site’s rules—makes it ineligible for the DMCA’s safe harbor.

Celebrity photos may not be a concern for most associations, but associations that allow users to post content on their sites might want to keep an eye on the case and review their policies.

In the 1990s, it became apparent that existing copyright law wasn’t designed for digital content, “so the DMCA was enacted to try to bring the law up to the digital age,” said Cydney Tune, senior counsel with Pillsbury Winthrop Shaw Pittman. “The focus was on shielding internet service providers from liability in certain circumstances,” and one of the safe harbors it provides is for user-generated content.

Whether to monitor user-generated content on an organization’s website has always been a difficult decision, Tune said. Sometimes organizations do it to protect their reputation and make sure people are not posting defamatory content or hate speech. “You’re kind of between a rock and a hard place. If you don’t monitor, and there’s something seriously wrong, it could damage your reputation, and it could create liability,” she says. “If you do monitor, then you could be theoretically raising the risk of liability, because someone could argue that you knew about it and didn’t stop it.”

Associations that monitor user-generated content on their sites probably aren’t monitoring it for the purpose of detecting copyright infringement, Tune said. Still, that monitoring might “jeopardize the reliance that you have on the DMCA to shield you from liability for this third-party infringement,” Tune said.

So what should associations be doing to protect themselves? The DMCA lays out requirements and a process that websites need to follow, including having a DMCA agent registered and having terms of use that inform users of the DMCA process. “Overall, many websites don’t have proper copyright processes,” Tune said.

Regardless of whether associations are located inside or outside of the Ninth Circuit’s jurisdiction, if their websites allow users to post content, they might want to make sure all their DMCA ducks are in a row. “They should make sure that, if there’s any possibility of interactivity with users on the website, they have proper terms of use, with a proper DMCA process,” Tune said, and that people are trained on proper DMCA notices.

“If you’re in the Ninth Circuit, you have to weigh the benefits of the DMCA against the potential risks of monitoring,” Tune said. She added that this is an issue even if the content appears only in a members-only area of the site.

Tune added that the reasons associations want to monitor content, the resources they have to do it, and their risk tolerance all come into play. “Some entities are very risk averse,” she said.

(iStock/Thinkstock)