Wednesday, March 14, 2018

Ventura Content v. Motherless (9th Cir. - March 14, 2018)

Here's a great opinion that gives insight into how most low-level porn sites on the internet work.  It doesn't sound like the greatest job in the universe to run most of those sites.  Plus you've got to deal with potentially getting sued for copyright infringement.  Like here.  Not fun at all.  Hardly worth the time, in my opinion.  But at least you get to say that you run a porn site for a living.  So if being able to truthfully say that at a cocktail party is your life's objective, then go for it.  Goals.

At the same time, today's Ninth Circuit opinion is basically a primer about how to run a porn site that massively infringes other people's copyright without actually getting held liable.  Just upload a ton of porn, let your users upload a ton of porn, and then do some very basic stuff to make sure you comply with the DMCA takedown requirements.  And, boom, you're immune.  Notwithstanding the fact that your site has a ton of stuff that violates someone else's copyright.

Judge Kleinfeld's opinion gives tons of cogent reasons why the defendant here wasn't liable given the contours of the DMCA.  And his analysis is pretty darn persuasive.  Plus, rarely do you see opinions that contain (as here) the word "".  So the opinion is notable, if only for that.

As I said, I think that Judge Kleinfeld's opinion is pretty darn good on its own terms.  But I did have two thoughts as I read it that I thought might be worth sharing.

First, Judge Kleinfeld raises -- but doesn't answer -- an interesting issue.  The DMCA and Ninth Circuit precedent says that you're not immune under the statute if you decide what to post at your "own direction," as opposed to merely posting whatever stuff users upload.  That basic concept seems right.  So too does Judge Kleinfeld's conclusion that the site here doesn't run afoul of this exception merely because it actively screens out child pornography, stuff that obviously violates copyrights, etc.

Sounds right.  We want people to do that.  And that doesn't mean that you're really just posting your "own" stuff or stuff at your own direction.  Cool.

But Judge Kleinfeld says that even though screening out kiddie porn doesn't mean that you're "actively" directing what's on your site, he says that "perhaps if Lange’s site were flooded with pictures and videos of kittens playing with yarn, he would change his rule and exercise judgment about whether the material was pornographic enough to host."  Which I'm sure is right -- the guy definitely wouldn't want tons of yarn-playing kittens (rather than porn) on the site (unless, I guess, there's some kink I don't know about).  Plus, I love the fact that Judge Kleinfeld works in the idea of kittens (of all things) in an opinion about a porn site.  Well done.

But here's the thing.  What about that?  What if people did flood porn sites with kitten videos?  I'm certain the operator would screen the things out.  And that might well demonstrate that the site is what it in fact all these sites are:  operator-controlled, at some level, because the operator only wants pornSo why don't copyright owners do this all the time?!  Just flood every major porn site with kitten videos, let the operator screen 'em out, and then sue.  In short, make Judge Kleinfeld's hypo a reality.  Seems like that would work.  And pretty cheaply at that.  (The porn site here, for example, lets users upload 999 videos at a time.)

Interesting thought experiment, at least.  And maybe a practical one for copyright owners as well.

My second thought's a broader one.

The DMCA articulates another exception for when the site owner knows full well that its site has material that violates copyright.  And there are Ninth Circuit cases that make clear that you can't just sit there and host massive copyright violations (e.g, be a pirate site with full movie downloads) and claim immunity under the DMCA.  If you know your place is chock full of copyright violations, you aren't immune.  Whereas if you've just got isolated copyright violations here or there, and you take those down once you know about them, you're okay.

You can see why that's the rule.  It makes sense.

The copyright owner in the present case says that the defendant here knew that his site was full of copyright violations, so the exception applies.  His best evidence was that almost all of the clips look professionally produced, fancy, etc.  But Judge Kleinfeld has a pretty decent response.  He says -- rightly -- that in the modern era, with smartphones and all, pretty much anyone can make a porn video that looks pretty darn fancy.  So the fact that the things "look" like movies doesn't necessarily mean that they are, in fact, professionally made (e.g., likely copyrighted) things.

Good argument.  Seems right.  Makes sense.

But here's the thing.

Yeah, it may be unclear for any given clip on a porn site whether it's for sure professionally produced.  But come on.  Seriously:  When you see these things, you know full well that the overwhelming majority of 'em come from copyrighted movies.  Might some of them be from homemade sex tapes that the owner uploaded?  Sure.  Can you be 100% positive that a given clip is from a full-length porn movie?  Maybe not.

But you are like 90% sure.  And, similarly, you can be extremely confident that, on the whole, the vast majority of what's on a given site is from copyrighted movies.  You just know.  And know to a degree of absolute moral certainty.  Notwithstanding all the arguments that Judge Kleinfeld rightly makes and the millions of individual clips, any one (or dozens) of which could possibly be sex tapes that were uploaded by their creators for free.  Still:  Visitors to the site know full well they're from movies.  And the owner of the site knows this even more.

So what you basically have as a result of today's opinion is precisely what you see out on the Internet.  Massive, obvious copyright violations.  On a virtually limitless scale.  But because you can't "prove" that the owner of the site "knew" that there were massive violations, the DMCA allows 'em to get away with it.  To the benefit of the public but to the detriment of copyright owners.

I had even thought of "proving" the point.  I decided to go on the web site at issue in this opinion -- -- and pick 100 clips at random and see if I could quickly find out which movies they came from.  My guess was that in an hour or two I could easily find 70 or 80 percent of the full-length, copyrighted movies from whence those clips were cut.

So I tried.  For about two minutes.

But, ugh!  There's some nasty stuff in there.  So I quickly abandoned the project.  Just not worth it.  (And, no, I'm not just rationalizing to my IT department why my work computer has recently visited some inappropriate places.  Seriously.)

Still, had I tried, my strong sense is that one could prove that, on virtually any given porn site, the majority of the clips in fact come from copyrighted material.  Since that's, in fact, what everybody knows and expects.  Because, yes, there's some legitimately amateur stuff out there, I'm sure.  But there's a lot more professionally produced stuff.  'Cause there's a lot of money in it.  And that's where most of the stuff in fact comes from.  Even if, as Judge Kleinfeld notes, it's hard to absolutely prove knowledge with respect to any individual person with respect to any individual clip.  In the aggregate, what's going on is clear.  Just like I sometimes know that a number of students in a given class have not done the assigned reading even though I can't prove to an absolute certainty that any particular one of 'em is a culprit.

So, anyway.  A blow today for continuing massive copyright violations on porn sites.

One final thing.  It took Judge Kleinfeld over two and a half years after oral argument to write up this opinion (alongside Judge Rawlinson's partial dissent).  That's a ton of time, no?

Probably due to all the "research" that was required for the opinion, no doubt.