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The Supreme Court Refuses a Case Challenging the Notorious DMCA ‘Safe Harbor’

Posted on June 19, 2018
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U.S. Supreme Court (photo: Richard Gillin (CC by 2.0))

photo: Richard Gillin (CC by 2.0)

Despite glaring issues with the Digital Millennium Copyright Act (DMCA), the Supreme Court has declined a case challenging the 90s-era rule.

The U.S. Supreme Court declines a lot of cases and challenges, often with little explanation.  The reject list now includes a test of the hotly-contested Digital Millennium Copyright Act (DMCA), which media industries have long decried as a loophole exploited by tech companies.

According to a release by the Court issued on Monday (October 29th), the DMCA-related Ventura Content, Ltd. v. Motherless, Inc. et. al. will not be heard by the high court.  Ventura Content is a porn studio based in Southern California that sued user-generating porn site motherless.com for hosting its clips without permission.

(And for those tempted to check out Motherless, note that it’s very, very NSFW…)

Unfortunately for Ventura, Motherless seemed to be complying perfectly with the DMCA’s provisions.  In its ruling earlier this year, the Ninth Circuit Court of Appeals ruled in favor of Motherless, largely because the content in question was uploaded by users without Motherless’ explicit knowledge (or at least that was the story told — and believed).

When notified of the infringing content, it was removed promptly by Motherless.  Additionally, both the U.S. District Court and Ninth Circuit Court of Appeals noted that Motherless had a policy of removing infringing and illegal content, and was basically following the terms of the DMCA.

Technically, Motherless is innocent.  But in reality, the site probably knew about uploads of copyrighted content and wasn’t self-policing enough.

Instead, like many user-generated sites, it was simply responding to takedown orders, which simply opens the door to the next act of infringement.  It’s a hopeless whack-a-mole that results in endless infringing uploads, despite the presence of sophisticated content filters.

That said, Motherless owner Joshua Lange was also removing obviously problematic and illegal material.  That includes bestiality and child pornography, though Ventura argued that Lange’s screenings show that he knowingly posted Ventura’s content himself, or at least had knowledge of it.

Possibly, though the court wasn’t buying that argument.

“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 Appeals Court opined.

The result caused Ventura to argue that the federal court system was in ‘disarray’ over the rule, while overlooking obvious forms of infringement.  It’s a sentiment that many within the music industry share, though Ventura’s case largely boiled down to a legal interpretation of the existing law.

That likely explains the Supreme Court’s decision not to hear this case.  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.