Pornography Dispute Sheds Light on DMCA Safe Harbor Defense

by McDermott Will & Emery

McDermott Will & Emery

In a dispute pertaining to copyright infringement of pornographic films created by the plaintiff, the US Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of a defendant website that displays pornographic images and videos uploaded by the site’s users, finding that defendant qualified for the safe harbor defense to copyright infringement under § 512(c) of the Digital Millennium Copyright Act (DMCA). Ventura Content, LTD. v. Motherless, Inc. and Joshua Lange, Case Nos. 13-56332; -56970 (9th Cir., Mar. 14, 2018) (Kleinfeld, J) (Rawlinson, J, dissenting).

Ventura Content creates and distributes pornographic films. Ventura sued Motherless for copyright infringement when 33 clips from Ventura’s films were posted to by the site’s users.’s terms of use prohibit certain user uploads, including copyright-infringing material. The terms of use also invite copyright owners to submit takedown notices for infringing content that appears on, and offer the ability to remove infringing content directly through a software tool provided by Motherless.

Ventura did not utilize takedown notices or the Motherless direct removal software before filing suit against Motherless for copyright infringement and requesting an injunction and damages. After being served with the lawsuit, Motherless deleted the infringing clips from its website once it obtained a list of the applicable URLs from Ventura, thus making the injunction claim moot. The district court granted summary judgment in favor of Motherless on the federal copyright claim under the safe harbor provision of the DMCA. 

Section 512(c) of the DMCA provides a safe harbor provision that protects website service providers from liability for unintentional copyright infringement due to the service providers’ storage and hosting of copyrighted material posted “at the direction of” a third-party user so long as the service providers follow the notice and takedown requirements as set forth in the Act, including expeditious takedown of known infringement and termination of repeat infringers. On appeal, Ventura challenged Motherless’s compliance with various requirements of the statute to argue that Motherless was not eligible for safe harbor protection.

First, Ventura argued that content at Motherless was made available “at the direction” of Motherless itself, and not its users. Citing § 512(m) of the DMCA, as well as its 2013 decision in UMG Recordings, Inc. v. Shelter Capital Partners LLC (IP Update, Vol.16, No.4), the Ninth Circuit disagreed and concluded that material at Motherless is in fact posted at the direction of users, and that Motherless did not forfeit safe harbor protection by screening for and removing illegal content, such as child pornography, or by organizing content into various categories, including “Most Popular.”

The Ninth Circuit again cited UMG when rejecting Ventura’s claims that Motherless had actual or apparent knowledge of infringing content on the website, stating that “hosting material capable of copyright protection, with the general knowledge that the site could be used to share infringing material is not enough to impute knowledge.” Despite the fact that Motherless reviewed user uploads before posting them, the court determined that because the Ventura clips had no copyright ownership notice or any other indication that Ventura owned the copyright, it would not be obvious to a reasonable person that the Ventura clips were infringing to impart such actual or apparent knowledge of infringement. Moreover, the Court found that Motherless’s removal of the Ventura content after being served with the lawsuit was sufficiently “expeditious” to comply with the safe harbor requirements.

The Ninth Circuit also quickly dismissed Ventura’s claims that Motherless had the “right and ability” to control the infringing activity and received a financial benefit “directly attributable” to the infringing activity, finding no evidence that Motherless made any money directly from the Ventura clips. The Court also determined that the record included evidence that Motherless adopted and reasonably implemented a policy of terminating repeat infringers, despite having no written “details of the termination policy” and no employees to share the details with. Ultimately, the Court concluded that Motherless qualified for the DMCA safe harbor defense to copyright infringement, and affirmed the grant of summary judgment in favor of Motherless.

Judge Rawlinson issued a dissent, stating that there were triable issues of material fact as to whether Motherless properly complied with the requirements under the statute regarding the existence of a repeat infringer policy and the reasonableness of actions taken by Motherless to terminate repeat infringers. 

Practice Note: Various elements in this case pertaining to Motherless’s compliance with safe harbor requirements seemed to turn on the fact that Motherless is largely run by a single individual. Therefore, activities taken by Motherless to comply with the DMCA safe harbor provision may not be sufficient for a larger service provider. It is always a good idea to review your safe harbor policies and practices with a lawyer

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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