PASADENA, Calif. – In a split decision handed down Wednesday, a three-judge panel from the Ninth Circuit Court of Appeals upheld a lower court’s summary judgment dismissing copyright infringement and unfair competition claims brought against Motherless.com by Ventura Content Ltd., the rights-holding division of adult studio Pink Visual.

The appellate court held the trial court had not erred in finding that the “defendants qualified for the safe harbor defense set forth in the Digital Millennium Copyright Act” and “did not abuse its discretion in not exercising supplemental jurisdiction over a California state law claim.”

The appellate court also found the district court similarly “did not abuse its discretion in denying an award of attorneys’ fees to defendants,” a portion of the ruling which cut against Motherless and its owner, Joshua Lange.

The three-judge panel consisted of Judge Andrew J. Kleinfeld, who wrote the majority opinion, Judge Johnnie B. Rawlinson, who dissented, and Judge Jacqueline H. Nguyen, who voted with Kleinfeld.

At issue in the case were 33 clips uploaded to Motherless, of which the court noted it was “undisputed that the clips infringed on Ventura’s copyright.” Since the Ventura clips had been uploaded by Motherless users and not Lange or anyone employed by him, the “central issue in this case is whether Motherless met the safe harbor conditions,” Kleinfeld wrote in the decision.

One of Ventura’s argument was that since “Lange uploaded 700,000 files from his old site, screens uploads for illegal material before putting them on the site, and has his software categorize material into classes,” this combination of facts meant “the Motherless material was stored and made available ‘at the direction of’ Motherless, not the users.”

The majority disagreed with this reasoning, finding (among other things) “Motherless’s users, not the website, decide what to upload and what file names and tags to use,” and that the court found 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.”

Another question raised by the case is whether Lange and Motherless had “actual knowledge” of the Ventura-copyrighted content on the site.

“Ventura and its expert argue that Lange must have had actual knowledge that the Ventura clips infringed on its copyright because they appeared to be professionally produced and because a few had watermarks,” Kleinfeld wrote. “That argument is unavailing.”

Kleinfeld noted with a few exceptions, the Ventura content was not watermarked, and the clips which were marked “gave no hint that Ventura owned the material” and “do not establish a genuine issue of fact about whether Motherless knew the material was infringing.”

Kleinfeld was similarly unpersuaded by the notion Lange should have realized the clips were copyrighted content because “high quality of the videos showed professional production,” because “the conclusion does not follow from the premise.”

“Professionally created work often is posted online to publicize and attract business for the creator,” Kleinfeld noted. “Amateurs often do professional quality work in artistic endeavors, and amateurs are no less entitled to copyright protection than professionals, so it is not apparent why professionalism matters.”

Further, Kleinfeld opined that the Ventura work perhaps wasn’t as clearly “professional” as the plaintiffs contended.

“Many of the clips include shaky camera footage and poor lighting,” Kleinfeld wrote. ‘One starts with a camera bouncing around taking pictures of the interior of a car, has a voiceover saying ‘figured out how to finally turn this thing [the camera] on,’ and so forth. We have no idea how it would be possible to recognize “professionals” from amateurs on the videos, and Ventura has not provided any factual information to help us. It is hard to see what distinguishes Ventura’s videos from homemade work uploaded to the internet by the rightful owner, and it is even harder to see why it would be obvious that the Ventura videos were infringing.”

A closer call for the panel, perhaps, was the question of whether Motherless had “adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”

Relying largely on Lange’s testimony in a deposition, the majority found Motherless had satisfied this statutory requirement, despite the policy in question not existing in writing, and despite Lange’s vagueness in how, precisely, the policy is enforced.

“The details of the termination policy are not written down,” Kleinfeld conceded in the decision. “However, the statute does not say that the policy details must be written, just that the site must inform subscribers of ‘a policy’ of terminating repeat infringers in appropriate circumstances…. So the lack of a detailed written policy is not by itself fatal to safe harbor eligibility. Neither is the fact that Motherless did not publicize its internal criteria.”

In his dissent, Judge Rawlinson strongly diverged from his colleagues on the question of whether the system Lange described amounted to a “policy” which was “reasonably implemented.”

After noting that in reviewing a decision for summary judgment, an appellate court must interpret the facts in a way most favorable to the plaintiff, not the defense, Rawlinson opined that a “gargantuan issue of fact was raised by Ventura regarding Motherless’/Lange’s compliance” with the DMCA safe harbor’s repeat infringers policy requirement.

“Further supporting the existence of a material issue of fact regarding the establishment of a policy is the failure of Lange to articulate a consistent approach to the termination of repeat infringers,” Rawlinson wrote, further noting that Lange gave several different and conflicting accounts of how he implements the policy, including at one point describing “an ‘automated system for removing people’ that he later acknowledged did not actually exist.”

Lange also described his policy as a “gut decision making process,” something Rawlinson clearly felt uncomfortable accepting as a “policy.”

“Who can say with a straight face that a ‘gut decision making process’ constitutes a policy?” Rawlinson wrote. “I certainly can’t.”

“At a minimum, Lange’s inconsistent and inadequate articulation and application of the Motherless/Lange policy, such as it is, governing termination of repeat infringers precluded entry of summary judgment in favor of Motherless/Lange,” Rawlinson concluded.

It is not clear at press time whether Ventura will seek a rehearing en banc from the 9th Circuit.