Addressing whether the owner of a media website could invoke the safe harbor provision of the Digital Millennium Copyright Act (DMCA), the US Court of Appeals for the 10th Circuit affirmed the district court’s grant of summary judgment in favor of the owner of Examiner.com, noting that the defendant, an internet service provider (ISP), did not have actual or circumstantial knowledge of the plaintiff’s photographs that were posted to its website by independent contractors. BWP Media USA, Inc. v. Clarity Digital Group, L.L.C., Case No. 15-1154 (10th Cir., Apr. 25, 2016) (Kelly, J).   

Examiner.com is a news and entertainment website that uses independent contractors to write articles and generate content. BWP Media USA, the owner of rights in certain celebrity photographs, sued AXS Digital Media Group for copyright infringement and related claims because Examiner.com’s independent contractors had posted several of BWP’s photographs without BWP’s permission. AXS Digital Media Group asserted that the DMCA’s safe harbor provision shielded it from liability.

DMCA’s safe harbor provision (17 USC § 512(c)) protects ISPs from monetary liability for copyright infringement that occurs through the use of their service and limits the injunctive relief that may be awarded against ISPs. For the provision to apply, an ISP must demonstrate that the infringing content was stored “at the direction of a user.” 

On appeal, BWP contended that Examiner.com’s independent contractors were not “users” under the DMCA safe harbor. The 10th Circuit was not persuaded. The Court found that the plain meaning of “user” in § 512(c) is “a person or entity who avails itself of the service provider’s system or network to store material,” and found that the independent contractors of Examiner.com fit this definition.  

BWP also failed to convince the 10th Circuit that the infringing content had been stored at the direction of AXS Digital Media Group, which would render § 512(c) inapplicable. BWP argued that, by telling its independent contractors what to write about for Examiner.com, AXS Digital Media Group had somehow directed its independent contractors to infringe. The 10th Circuit found that these general instructions fell far short of evidence from which a reasonable trier of fact could find that AXS Digital Media Group had directed the infringement.

The Court further found that AXS Digital Media Group met the other requirements to qualify for protection under the DMCA safe harbor—namely, that AXS Digital Media did not have actual or circumstantial knowledge that the photographs posted on Examiner.com were infringing.