Mavrix Photographs, LLC v. Live Journal, Inc.
853 F.3d 1020
| 9th Cir. | 2017Background
- Mavrix (photography company) sued LiveJournal for posting 20 copyrighted celebrity photographs on ONTD, a popular LiveJournal community, between 2010–2014. LiveJournal removed the posts after suit was filed.
- ONTD content is submitted by users to a queue; volunteer moderators (and one paid "primary leader" hired by LiveJournal) review submissions and publicly post roughly one-third of them. Moderators also enforce community rules including copyright guidelines.
- LiveJournal moved for summary judgment invoking the DMCA § 512(c) safe harbor (material "stored at the direction of a user"), arguing users, not LiveJournal, directed the posting.
- The district court granted summary judgment for LiveJournal, holding the user submissions satisfied the § 512(c) threshold and rejecting Mavrix’s agency theory that moderators could be LiveJournal agents.
- The Ninth Circuit reversed, holding common-law agency principles apply to § 512(c) and finding genuine disputes of material fact about whether moderators were LiveJournal agents, whether posts were posted at users' direction, and related knowledge/control/financial-benefit elements.
- The Ninth Circuit vacated the denial of discovery into moderator identities and remanded for further proceedings, instructing the district court on how to assess the remaining § 512(c) elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether common-law agency applies to § 512(c) analysis | Agency law applies; moderators may be LiveJournal agents, making postings by moderators attributable to LiveJournal | Agency rules should not determine whether material was "stored at the direction of a user"; focus on user submission | Agency principles apply; Ninth Circuit reverses district court and remands for factual determination |
| Whether moderators were LiveJournal agents (actual/apparent authority; control) | Moderators performed core functions per LiveJournal direction; LiveJournal exercised selection, supervision, ratified rules — agency question for jury | Moderators are unpaid volunteers free to leave; LiveJournal lacked sufficient control to create agency | Genuine issues of material fact exist as to agency — remand for trial to resolve |
| Whether posts were "at the direction of the user" (§ 512(c) threshold) | If moderators are agents, their screening/posting may mean LiveJournal, not users, caused public posting | User submission to queue means posts originated from users and fall within § 512(c) | Factfinder must decide on remand whether moderators’ manual/substantive review exceeded "accessibility-enhancing" activities so postings were not at users’ direction |
| Whether LiveJournal had knowledge / right & ability to control / financial benefit (other § 512(c) elements) | Evidence (watermarks, volume of infringing posts, moderator practices) could show actual/red-flag knowledge, control, and financial benefit | LiveJournal lacked actual or red-flag knowledge; and did not exercise “high level” control or derive direct financial benefit from infringing activity | Court outlined standards; factual disputes remain and must be resolved on remand (knowledge, control, and financial-benefit inquiries are jury questions) |
Key Cases Cited
- Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (applies common-law agency principles in copyright context)
- Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) (DMCA safe harbor framework and interpretation under existing legal principles)
- Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013) (agency principles applied to service-provider intent and red-flag knowledge analysis)
- UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013) (distinguishes passive submission from active posting; discusses accessibility-enhancing activities and right/ability to control)
- Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) (distinguishes § 512(a) passive hosting from active roles affecting safe harbor analysis)
- Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (manual selection/prominence of content bears on safe harbor eligibility)