Ventura Content v. Motherless
885 F.3d 597
9th Cir.2018Background
- Motherless.com, run solely by Joshua Lange, hosted >12 million mostly user-uploaded pornographic images/videos; content was free with a small premium subscription option; Lange originally uploaded ~700,000 files from a prior site but received virtually all subsequent content from users.
- Ventura Content owned copyrights to 33 video clips (20 seconds–46 minutes) that were uploaded by eight users and viewed ~31,400 times over ~20 months; Ventura did not send DMCA takedown notices before filing suit.
- Motherless posted Terms of Use prohibiting copyright infringement, provided a takedown procedure and a link allowing rights-holders to remove files directly, reviewed thumbnails for illegal content, and removed content when notified; Lange terminated tens of thousands of accounts for Terms violations and thousands for alleged infringement.
- District court granted summary judgment to Motherless on the copyright claim based on §512 safe harbors, declined to exercise supplemental jurisdiction over Ventura’s California UCL claim, and denied Motherless attorney’s fees; Ventura appealed and Motherless cross-appealed fee finding.
- Ninth Circuit (majority) affirmed: held Motherless met §512(c) requirements (storage at user direction; no actual or red-flag knowledge; expeditious takedown upon notice; no direct financial benefit tied to the specific infringements; reasonable implementation of a repeat-infringer termination policy).
- Judge Rawlinson dissented as to safe harbor, arguing genuine disputes of material fact existed about whether Motherless reasonably implemented and informed users of a repeat-infringer termination policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether uploads were "storage at the direction of a user" under §512(c) | Motherless curated, screened, grouped content and incentivized uploads, so postings were effectively at site direction | Users chose what to upload; site functions (thumbnails, tags, "Most Popular") merely facilitate access | Held for defendant: users, not Motherless, directed uploads; facilitating/formatting does not defeat §512(c) (UMG line) |
| Actual or "red flag" knowledge and expeditious takedown | Lange reviewed uploads and some clips were professionally produced/watermarked, so infringement was or should have been apparent; removal was not prompt | No Ventura-identifying marks; Ventura never sent DMCA notices before suit; Lange removed clips immediately after receiving URLs | Held for defendant: no actual or apparent knowledge re: these specific clips; removal upon receipt of proper identifying information was expeditious |
| Right and ability to control + financial benefit under §512(c)(1)(B) | Site had tools, incentives, and editorial features amounting to control; ad revenue depended on infringing content | Physical ability to remove is insufficient; must have power to substantially influence user activity and receive revenue directly attributable to the specific infringements | Held for defendant: Motherless lacked the requisite "right and ability to control" and received no direct financial benefit from the Ventura clips |
| §512(i) repeat-infringer policy: adoption, reasonable implementation, and notice to users | Motherless lacked a written, systematic policy/log; enforcement was ad hoc and inconsistent (e.g., major uploader terminated only after multiple notices), raising triable issues | Motherless had posted policies, a DMCA procedure, removed millions of items and terminated many users; Lange personally applied factors and saved notices—implementation was reasonable given the small operation | Held for defendant (majority): policy existed and was reasonably implemented; no genuine issue of material fact as to repeat-infringer compliance; dissent disagreed |
| Supplemental jurisdiction over state UCL claim; attorney's fees | Ventura: state claim arises from same facts and should be heard; prevailing party fees requested by Motherless | District court: state claim not part of common nucleus; fee award discretionary—Ventura’s claims were not frivolous | Held: district court did not abuse discretion in declining supplemental jurisdiction; district court did not abuse discretion in denying attorney's fees |
Key Cases Cited
- UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006 (9th Cir.) (broad reading of "storage at the direction of a user" and allowance for access-facilitating processing)
- Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir.) (automated format conversion and recommendation algorithms do not forfeit §512(c) protection)
- Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir.) (site operator that actively solicited and facilitated full-featured infringing works had red-flag knowledge and control)
- Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir.) (section 512(i) "implements" requirement: working notification system and procedures bear on reasonable implementation)
- Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78 (2d Cir.) ("apparent" knowledge requires facts making the specific infringement objectively obvious)
- Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th Cir.) (distinguishes moderator-driven editorial selection from mere facilitation; factual disputes can preclude summary judgment)