I should be clear that this case hasn't concluded yet. It seems from the way the DMCA regulations are written, that you have safe harbour from prosecution if anyone unlawfully publishes copyrighted content on your site without your knowledge. At least until you take control of those posts in any meaningful way.
Live Journal has a system of volunteer moderators who were also instructed to try and catch breaches of copyright. This system doesn't appear to be robust or iron clad, just a filter to try and weed out some of the breaches, along with other content not useful to the site. However, it seems that by the moderators green lighting posts as not contravening the rules of the website, it could bind Live Journal as authorizing the breaches of copyright, and remove their safe harbour. The reason potentially being: The posts may no longer be considered as being made 'at the direction of the user', but at the direction of Live Journal or its agents.
In essence, there could be a precedent set here that a hands off approach to controlling breeches of copyright might be the safest way to deal with this in similar situations to that of Live Journal. It seems that you either don't try and mitigate violations of copyright, or try and prevent it to the highest of standards. No middle ground. Even trying to do the right thing and filter out some breaches of copyright may be bad news for a site owner, but it remains to be seen what the final verdict will be.
To me that sounds like it would be treating the moderators as the agents of the website. I know next to nothing about copyright law, but I know in business law an agent can get a company into super deep shit depending on their actions.
I guess some of it would also depend on how the website is setup. I mean as far as I know 4Chan hasn't been sued into oblivion and they have all sorts of fun and exciting things posted on the site even with moderators lurking.
Yeah in the video deciding whether the moderators are true agents or not is at the heart of the matter. I know Canadian law, and it seems clear cut that they are agents acting on their behalf, but from the video, it seems that US agency law is a birds nest of common law, which is...well a bit messier.
Part of Leonard's message is this case could have huge implications for sites like 4chan, Youtube (perhaps), etc.
Yeah, it's a bit of a mixed bag. There have been at least two cases regarding moderation on forums and whatnot, but for defamation/libel rather than copyright.
“Moderators are agents for the limited purposes of moderating discussions, but this does not make them all-purpose agents.”
By holding him out as a staff member who enjoyed “special powers” and who could be trusted to provide correct answers, Bleeping (website) represented that Quietman7 (moderator) was authorized to post on the company's behalf, the court said in allowing the libel and Lanham Act claims to proceed.
Using some language in the ToS of the website stating that moderators are volunteers and not agents may help, but it would entirely depend on the court.
Well as far as agency goes I have no problem with moderators being held as agents. Organizations/corporations trying to get free labour is bad enough.
However I think the point here is the apparent loop hole in the DMCA regulations. There seems to be no middle ground in trying to mitigate copyright violations. You either put perfect effort into removing violations (highly trained staff, research every post and image, etc) or stay hands off. As far as the copyright landscape is concerned, it is worse to 'force' sites to put zero effort into mitigating copyright violations, and worse to punish those that try to mitigate it somewhat.
We can only hope that the courts have the power to make a ruling allowing for sites to have varying levels of moderation, that offer varying levels of copyright mitigation, but I wonder if the courts will even have the power to do that, since, technically, that is not the way the law is written.
Haha, the first thing I told Wendell when I was modded, was probably something along the lines of "I will not represent any opinion but my own, and will stand back if it is expected from me to represent an opinion I don't agree with". I don't remember, but Wendell probably does lol.
If push ever comes to shove, I have no problem explaining to any judge that there is a difference between agreeing with something and being an agent for something. Agent my arse lol! I'm sure every single mod on this forum agrees with that. All the mods here also have completely different opinions, some radically different to the point of extreme opposition. And that's just how it should be... lol agent muahahahahaaaaaa
Legally, agent doesn't mean you are proliferating someone's voice. It means you are empowered to (or it is reasonable to presume that you are empowered to) act on someone's behalf in some fashion.
For example: I don't know your agreement with Wendell, but I assume you are directed by him to uphold the forum rules (at the very least anyway). Perhaps you get to decide for yourself what is a breach of those rules based upon your claim, but Wendell gave you at least one task (of varying specificity) to do? no?
As far as the article goes, it is more what falls within what category or law, or not, and cascading decisions (for lack of a better description) could make it so moderation of copyright violations remove safe harbour, regardless of many of the other circumstances around it.
No, an agent at least has to have a self-imposed assignment that stems from the master. The mods here do not have an assignment at all.
There are a few things that make this forum unique and special: - The mods are users. They act on their own behalf, their own opinions, their own morality. The rules for moderation are discussed with the mods, and are based on the problems in the forum. In the rules of the forum, there is input from just about every mod on the forum. There is no contract to uphold a set of rules, there is no contract to uphold anything, there is no contract period. The mods are users who care enough to be given privileges to act against users who don't care enough or abuse privileges. Why? Because it benefits the community. - If the mods had to be an agent of someone, which they are not, it would be of a group of users, not of the owner of the forum. The different mods on this forum have different opinions in fields relating to this forum that are typically shared with particular groups of users. That's why the mods operate with internal communication, basically to weigh off different tendencies and prevalences of the userbase segments against each other. Since the rapture, I've never ever seen any member of the owner's team or the owner himself give an order to any mod, he will be asked for his opinion by mods on the grounds of his infinite wisdom, but in fact, he's always very reserved about that, he's very strict about the forum as a community forum. The mods represent the entire relevant userbase of the forum, they are the voice of the community, and everyone is represented, whether they know it or not and whether they want it or not lol. Mods have agreed on methods of analysing potential problems in the community. It is basically like an open source project, that would be the best analogy. Users flag content, mods analyse and react to that, and adjust policy to deal with the voice of the community. Everything is logged and documented by the mods and done very seriously, to protect the rights and freedoms of the users. There is not a single rule about moderation from the owner, not one. There is only a cooperation framework the mods use by using the tools of the open source software at their disposal to do so. - This forum is VERY CLEAR about content added or contributed by users: everything posted will not cause prejudice to others, not by discrimination, not by verbal violence, not by invasion of privacy, etc... AND it is required of every user here to only post content that can be freely used under an annotated creative commons license model, basically typical creative commons, with the exception that a perpetual license of free use is given to L1T. This is a rule that has been created by request of the mods, to exclude any liability for L1T AND for the mods themselves, because the mods DO NOT POLICE COPYRIGHTS PERIOD. The mods here are volunteers, not affiliated in any way with L1T. They only take on a community responsibility out of free will and by their own personal moral standards.
Basically, this is a complete non-issue for this forum. This forum is governed by the policy of common sense, not by any form of vertical representation, certainly not agency.
Well that is a neat structure you guys have there! Needless to say, I think it is somewhat of a first for Wendell to empower the mods without any sort of contract in place. Good leadership on his part, honestly.
Yeah, but DMCA aggression is not going to fade, quite on the contrary, too many desperate lawyers are trying to make a living out of abusing stupid legislation. The ultimate question is always whether or not common sense will overcome... I wouldn't give those agency theories much chance in court though. Some might score a lucky shot, but in general, it's the open source spirit that has created the system of moderation on community fora all over the world. The mere concept excludes agency. It was exactly the problem someone had with that concept that lead to the rapture. Not everyone understands the open source spirit, not everyone cares enough to do things out of free will and by investing his own opinion and taking occasional flak for it from the very community he/she aims to contribute to. Wendell is a pretty bright guy, he knows exactly what his contribution is, like the mods know what their contribution is. Mods are not here to contribute to any one person or small particular group of persons, mods are users that contribute in a certain way to the community like every user here contributes to the community, and like Wendell contributes to the community the most of everyone, and everyone contributes in a certain way. Ultimately, the real power is with the regular users, they express what they want from the community by flagging and by the nature of their contribution. Mods don't flag you know, Wendell doesn't flag either. Mods analyse what the community expects from them and try to make that happen for the community. That's really all there is to say about that. Nobody is pulling any strings from above in any way or shape.
I wish it were overblown, but I am not one to 'click bait', and hate that practice. After watching the video, which is the commentary of the appeal court itself, this seems to be the direction they were going.
I just wanna take the time to thank the moderators for what they do. They recieve no pay and are always active in keeping the community on point. And always active on the site in general.
It breaks my heart ( in a good way ) to see such great mods here.
Merely was trying to use the mods as an example, where I was utterly wrong in my assumptions of the relationship there.