Oppenheimer v. Allvoices, (N.D. Cal., No. 3:14-cv-00499) 6/10/14

FACTS:

  • Plaintiff David Oppenheimer is a professional photographer and the owner of Performance Impressions, LLC.
  • Defendant Allvoices, Inc. ("Allvoices") is an online service provider that publishes audiovisual content and sells advertising space on its website.
  • Allvoices.com describes the site as a platform for "citizen journalism" that is "committed to delivering a community-driven platform for open, global news and idea exchange."
  • According to the complaint, third-party citizen journalists who post news, videos, images and commentary to Allvoices.com are paid for their contributions.
  • In February 2011, plaintiff learned that Allvoices published, or allowed to be published, unlicensed copies of several of his photographs, which he had already registered with the U.S. Copyright Office.
  • The following month, on March 15, 2011, Allvoices designated a Digital Millenium Copyright Act ("DMCA") agent with the Copyright Office.
  • In August 2011, plaintiff sent Allvoices a notice, asking it to cease and desist from engaging in the infringing activity and to preserve electronically-stored information.
  • Plaintiff alleged that Allvoices eventually removed access to the works, but the company failed to reply to resolve the infringement matter without costly litigation.
  • Plaintiff filed a complaint against Allvoices, alleging that it had reproduced and publicly displayed on its website multiple registered photographic works owned by plaintiff, without his permission.
  • Allvoices moved to dismiss the action claiming, among other things, protection under one of the safe harbor provisions of the DMCA.

DMCA:

  • The DMCA offers a "safe harbor" for Internet Service Providers and online venues for copyright infringement of items or material posted by third parties on their websites, networks or systems, as applicable.
  • The safe harbor provision applies to those online venues that have no knowledge of the infringement and who expeditiously remove the infringing articles once they become aware of the situation.
  • Of particular significance in this case is that online venues are required to designate an agent (with the U.S. Copyright Office) to receive notification of infringement claims.
  • Without such designation, the safe harbor will not apply.

DISTRICT COURT DECISION:

  • The court found that Allvoices cannot invoke the safe harbor provision with respect to any infringing conduct that occurred prior to the time when it designated a DMCA agent with the Copyright Office.
  • Allvoices claimed that once it filed the paperwork establishing the DMCA agent, it should have received the safe harbor protection available under the DMCA with respect to all infringements, not only those occurring after that date.
  • The court was not persuaded by this argument and held that the subsequent designation of a DMCA agent does not protect an online venue from infringing activity that occurred prior to the designation.

TAKE AWAY:

  • According to this decision, online venues must designate a DCMA agent with the U.S. Copyright Office in order to claim safe harbor protection.
  • Such designation does not apply retroactively.

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