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Moderated Forums & Websites Lose DCMA Protection

If you host a forum or website with user generated content, you can generally shield yourself from liability for any infringing works they post by filing as a DCMA Designated Agent and posting simple procedures for claimants to request the takedown of infringing materials.  This is a simple procedure which can save headaches down the road. 

When it comes to moderated content, these safe harbor protections may no longer be afforded. On April 7, the Ninth Circuit ruled in the case of Mavrix Photographs, LLC v. LiveJournal, Inc., (Mavrix) that hosting platforms are ineligible for safe harbor based on the acts of its agents, such as a moderator or curator.  In other words, where content is user generated but moderated or curated by a site (including even unpaid moderators at large), the site can be held accountable for infringement itself, even where there is a simple procedure for removing infringing content.

Consider the implications of moderating user content on your liability for copyright infringement (say, if a user posts a picture for which they have no rights, or a code that they are not entitled to).  It may be better to enforce an Acceptable Use Policy removing offending content after the fact, than inserting a moderator to review before publication.

Fenwick published a great post which covers this decision and related matters in more detail.

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