Ventura Content, Ltd. v. Motherless, Inc.

885 F.3d 597 (9th Cir. 2018)

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Nature of the Case

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Facts

Lange (D), owns, operates, and is the sole employee of his internet site, Motherless.com. The site contains over 12.6 million mostly pornographic pictures and video clips. The content generally has been uploaded by the site's users, and the uploaders may or may not have created the material. Motherless stores the content on servers that D owns. In 2011, the website had nearly 750,000 active users and about 611,000 visits daily. No one has to pay D anything to look at the pictures or watch the videos on his site. A 'premium' subscription is available for viewers willing to pay in exchange for avoiding advertisements and enabling downloading, but only two in a thousand active users buy premium subscriptions. D makes about 15% of its income from subscriptions, T-shirts, coffee mugs, and the like. The remaining 85% comes from advertisements. Since its initial upload, D has gotten all of its pictures and videos from its users. It does not have any licensing deals with content producers. D does not pay users for the pictures and clips they upload. Each time that a user uploads a file, he receives a warning on his computer screen that says 'Anyone uploading illegal images/videos will be reported to the authorities. Your IP address . . . has been recorded. Any images/videos violating our Terms of Use will be deleted.' After the user has uploaded content, he can add a title and tag to it. Tags are words for which Motherless's search software will look when a user searches for particular content. Motherless does not edit, review, or approve file names, titles, or tags. It does maintain links to certain classes of content, such as 'Most Viewed' and 'Most Popular.' The Terms prohibit posting copyrighted material without the prior written consent of the copyright owner, and they invite takedown notices for infringing material. The website gives directions for emailing takedown notices. D also uses a software program that provides copyright owners with a link and password so that they can directly delete infringing material themselves, without having to send a takedown notice. D spends three to six hours a day, seven days a week, looking at the uploads, and he estimates that he reviews between 30,000 to 40,000 images per day. D deletes any violating material that he or his contractor spot. Whenever he finds child pornography, he contacts the National Organization of Missing and Exploited Children so that criminal action can be instigated against the uploader. D personally examines all copyright infringement notices, whether DMCA-compliant or not, and deletes any infringing content that he can find. D deletes it as quickly as he can, ordinarily within a day or two. He also sends an email to the user who uploaded the video or picture, notifying him that the uploaded material has been deleted. D uses software to prevent users from re-uploading previously deleted material. D has received over 3,500 takedown notices. D has deleted over 4.5 million pictures and videos for violating D's Terms of Use and estimates that 4% to 6% of the deleted files were for copyright infringement. D personally terminates repeat infringers. D terminated over 33,000 user accounts for violating the website's Terms of Use. Lange estimated that he terminated about 4% to 6% of these users for possible copyright infringement, which would be between 1,320 and 1,980 users. P creates and distributes pornographic movies. P found 33 clips on Motherless from movies it had created. The clips were anywhere from 20 seconds to 46 minutes long, mostly 15 minutes or longer. There were no Ventura watermarks, credits, or other pieces of information suggesting in any way that P owned the copyright. These clips were visited 31,400 times during the 20 months they were posted. Eight users uploaded the 33 infringing clips. D terminated two of these users by 2012 (after this litigation began), one for repeat copyright infringement. P did not remove the material itself. P's first notice of infringement to D was this lawsuit. On the day that P gave D the URLs, D deleted the infringing clips. The district court granted summary judgment in favor of D. P appealed.