SCOTUS: Controversial DMCA ‘Safe Harbor’ Copyright Loophole Stays

Earlier this year, porn producer Pink Visual took its copyright case against the video aggregator site Motherless.com to the United States Ninth Circuit appeals court, claiming that Motherless was streaming Pink Visual porn clips without authorization or any kind of payment. But in its ruling in May, the court sent Pink Visual away unhappy. According to the court, Motherless was covered by the so-called “safe harbor” provision of the Digital Millennium Copyright Act a 2000 law intended to protect copyright holders from digital piracy. According to the Electronic Frontier Foundation, however, the DMCA’s controversial “safe harbor” provision protects service providers and online platforms from being held legally responsible for copyright-infringing content uploaded by users without the direct knowledge of the platform’s operators. The law requires only that a site such as Motherless, which allowed users to upload almost any type of content, take down a copyright-violating file once the copyright holder sends a notice asking the site to take action. Ventura Content, the parent company of Pink Visual saw the “safe harbor” provision as nothing but a giant loophole that allowed Motherless to host and stream porn clips it did not own. But the Ninth Circuit disagreed, noting that Motherless “did not have actual or apparent knowledge that the clips were infringing. Furthermore, defendants expeditiously removed the infringing material once they received actual or red flag notice of the infringement, they did not receive financial benefit, and they had a policy to exclude repeat infringers,” according to a summary of the ruling posted by Stanford University.  Ventura Content argued that because the site’s management regularly and diligently removed illegal content such as child porn and bestiality videos, they must have known that users were also uploading legal porn that violated copyrights. But the Ninth Circuit didn’t buy it. “We find it counterintuitive, to put it mildly, to imagine that Congress intended to deprive a website of the safe harbor because it screened out child pornography and bestiality rather than displaying it,” the Ninth Circuit judges wrote. In August, Ventura Content appealed the Ninth Circuit’s ruling to the United States Supreme Court, but on Monday, the high court simply refused to hear the case, allowing the “safe harbor” provision to remain unchallenged, without comment. “Ultimately, a legislative change is probably the better route, though Ventura is obviously frustrated with the current state of affairs—as are many media industries outside of porn,” wrote the site Digital Music News. Photo by USDA—Ken Hammond / Wikimedia Commons Public Domain