885 F.3d 597

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from my colleagues' conclusion that Motherless, Inc. and Joshua Lange qualified for the safe harbor provided for in the Digital Millennium Copyright Act (the Act).
It is important to remember that this case was resolved on summary judgment. Therefore, if a material issue of fact was raised by Ventura Content, Ltd. (Ventura), entry of summary judgment in favor of Motherless, Inc. and Lange was in error. See Zetwick v. County of Yolo , 850 F.3d 436, 441 (9th Cir. 2017) ("[W]here evidence is genuinely disputed ... that issue is inappropriate for resolution on summary judgment. The district court erred in granting summary judgment to the defendants ...") (citations, alteration, and internal quotation marks omitted). Moreover, all evidence is to be construed in the light most favorable to Ventura. See id . at 440.
From my reading of the record, a gargantuan issue of fact was raised by Ventura regarding Motherless'/Lange's compliance with the requirement that the service provider adopt, implement, and inform subscribers and account holders of the policy providing for termination of repeat infringers to merit safe harbor protection from copyright infringement.
It is important to set forth the obligations imposed upon the service provider Motherless/Lange under the Act. The Act provides that the safe harbor is available to a service provider "only if the service provider" "has adopted and reasonably implemented and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances ... of repeat infringers." 17 U.S.C. § 512(i)(1)(A) (emphasis added). The Act requires not only that the service provider have a policy, but that the policy be adopted and reasonably implemented. See id . The subscribers and account holders of the system must also be informed of the policy.
The majority concedes that Motherless/Lange has adopted no written or publicized policy that may be used to instruct regarding the expulsion of repeat infringers. See Majority Opinion , pp. 601-02, 615-16. The majority excuses this deficiency by noting that "there are no employees to instruct." Id ., p. 601. However, there is at least one independent contractor who, together with Lange, reviews all the photographs and videos before they are uploaded to the website. See Majority Opinion , p. 601. If, as the majority concedes, there is no written policy to instruct the independent contractor regarding repeat infringers, at a minimum a material issue of fact is raised regarding compliance with that requirement of the safe harbor provision.
The majority accuses me of "conflat[ing] Lange's screening of content ... and his implementation of Motherless's policy to terminate repeat infringers." Majority Opinion , p. 616 n.73. I beg to differ. I readily acknowledge that the screening precedes the implementation of the "policy" to terminate repeat infringers. But how would Lange know whom to terminate if the repeat offenders are not first identified by Lange or to Lange by the contractor? That question brings us back to the lack of guidance regarding the "appropriate circumstances" for terminating repeat infringers. 17 U.S.C. § 512(a)(1)(A). If the independent contractor has no guidance for determining when to refer screened material as from a potential repeat infringer, and Lange is the only one who actually terminates repeat offenders, a material issue of fact looms regarding the reasonableness of the Motherless/Lange system of identifying and terminating repeat infringers. See id .
Further supporting the existence of a material issue of fact regarding the establishment of a policy is the failure of Lange to articulate a consistent approach to the termination of repeat infringers. At one point Lange stated the repeat infringer policy as: "If we receive more than one takedown notice, we terminate the account." Lange even went so far as to describe this approach as "a written policy of Motherless." At a different point, Lange described an "automated system for removing people" that he later acknowledged did not actually exist.
The majority has apparently settled on the third approach articulated by Lange, the "I delete any infringing content I can find" approach. Majority Opinion , p. 601. Lange described this approach as "look[ing] at about 80 thumbnails per minute" to weed out repeat infringers. What Lange is really saying is that he looks at each thumbnail for a fraction of a second to identify repeat infringers. Lange uses his "judgment" rather than a policy to make this determination. Majority Opinion , p. 601-02. And Lange never explains how, without a written policy, his "judgment" is transferred to the independent contractor who is also responsible for identifying repeat infringers. For instance, Lange might make a "gut decision" to terminate a user after the first takedown notice. Majority Opinion , p. 616-17. Who can say with a straight fact that a "gut decisionmaking process" constitutes a policy? I certainly can't.
At a minimum, Lange's inconsistent and inadequate articulation and application of the Motherless/Lange policy, such as it is, governing termination of repeat infringers precluded entry of summary judgment in favor of Motherless/Lange. See Zetwick , 850 F.3d at 441.
The majority relies on "the paucity of proven failures to terminate" as evidence supporting satisfaction of the safe harbor requirements. Majority Opinion , p. 618. But this "evidence," or more precisely, lack of evidence is singularly unpersuasive because it relies completely on the less than stellar, unautomated recordkeeping system utilized by Motherless. The missing link is how many repeat infringers slipped through the massive cracks in the Motherless/Lange casual monitoring system. And as the majority concedes, there is evidence in the record that repeat infringers slipped through these cracks. See id . One of the biggest uploaders to the website was not terminated until after Motherless received a fourth takedown notice under the Act. See id ., p. 618-19. This circumstance raises a material issue of fact regarding the lack of implementation of one of Lange's self-described policies of terminating an account "if [Motherless] receive[s] more than one takedown notice." The failure to terminate the account of this admittedly repeat infringer certainly raised a material issue of fact regarding whether Motherless had "a policy that provides for the termination [of repeat infringers] in appropriate circumstances." 17 U.S.C. § 512(i)(1)(A) ; see also Perfect 10 v. CCBill LLC , 488 F.3d 1102, 1113 (9th Cir. 2007) ("A policy is unreasonable ... if the service provider failed to respond when it had knowledge of the infringement....").
The majority admits that "it may be hard to imagine how a site with so many subscribers and uploads could have so few repeat infringers, and how it could screen so effectively." Majority Opinion , p. 618. But the majority can only reach the conclusion that there are few repeat infringers, and that Motherless screens effectively, by impermissibly viewing the evidence in the light most favorable to Motherless rather than to Ventura. See Zetwick , 850 F.3d at 440. In addition to raising material issues of fact regarding the existence and implementation of the required policy, Ventura presented evidence that Motherless is completely unable to capture anonymous infringers. So how can the majority have confidence in the number of infringers who purportedly escaped termination if there is no way of knowing the actual number of infringers? This is a classic example of "garbage in, garbage out" evidence and should not permit Motherless to escape accountability under the Act for failing to adopt, disseminate, and reasonably implement a policy to terminate repeat infringers.
The safe harbor provision is basically an exception to the liability that otherwise applies under copyright law for those who harbor repeat copyright infringers. As with any other exception, its parameters should be construed narrowly. See, e.g. , Federal Bureau of Investigation v. Abramson , 459 U.S. 812, 103 S.Ct. 38, 74 L.Ed.2d 50 (1982) (noting that exceptions to the Freedom of Information Act are to be narrowly construed). The majority concedes that Motherless' policy is comprised primarily of "little more than Lange's [unwritten] multifactor judgment based largely on his recollection of DMCA notices" and his glances at the uploads. Majority Opinion , p. 618-19. I am not prepared to say as a matter of law that a "policy" that is unwrittten, uncommunicated, and often unimplemented falls within the safe harbor provisions of the Act.
I agree with the majority that the district court acted within its discretion when it declined to exercise jurisdiction over Ventura's California state law claim and when it denied an award of attorney's fees to Motherless. However, I seriously disagree with the majority that the district court properly awarded summary judgment in favor of Motherless/Lange. Viewing the evidence in the light most favorable to Ventura, material issues of fact remain regarding the existence of a policy as defined in the Act, and the reasonableness of actions taken by Motherless/Lange to terminate repeat infringers. I would reverse that portion of the district court's ruling, and I respectfully dissent from the majority's contrary ruling.

Passage view · GavelSight