Mavrix Photographs, LLC v. Livejournal, Inc.
873 F.3d 1045
| 9th Cir. | 2017Background
- Mavrix sued LiveJournal for posting 20 copyrighted celebrity photographs in the ONTD community; LiveJournal removed the posts after suit.
- ONTD is a large LiveJournal community that uses volunteer moderators (and one paid "primary leader," Delzer) to review queued submissions and publicly post about one-third of them. Moderators screen for relevance, copyright, pornography, and harassment.
- LiveJournal created moderator roles, provided rules (some ratified by LiveJournal), hired Delzer to lead ONTD and monetize the community, and monetizes ONTD by advertising tied to page views.
- LiveJournal moved for summary judgment asserting the DMCA § 512(c) safe harbor applies because the photos were "stored at the direction of the user." The district court granted summary judgment for LiveJournal and denied Mavrix discovery of moderator identities.
- The Ninth Circuit reversed: it held common-law agency principles apply to the § 512(c) threshold question (and remanded because genuine factual disputes exist about whether moderators were LiveJournal agents); it also vacated the denial of discovery and provided guidance on the remaining § 512(c) elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether common-law agency governs attribution of moderators' acts for § 512(c) eligibility | Moderators can be LiveJournal agents; agency law should apply to determine whether postings were "at the direction of the user" | Agency law does not apply; users directed the storage by submitting content | Court: Common-law agency applies to the § 512(c) analysis; reversed summary judgment and remanded for factual determination |
| Whether moderators were LiveJournal's agents (actual or apparent authority; control) | Evidence shows LiveJournal selected, instructed, ratified rules, and exercised control (hiring Delzer, structuring roles), so agency questions are factual | Moderators are unpaid volunteers free to leave; LiveJournal lacked sufficient control or assent to create agency | Court: Genuine disputes of material fact exist on actual/apparent authority and control; factfinder must resolve |
| Whether content was "stored at the direction of the user" when moderators screened and posted | Moderator screening/posting may make LiveJournal responsible rather than users; their substantive manual approval may go beyond accessibility-enhancing activities | Users submitted content, and submission supports storage "at the direction of the user"; § 512(a) covers passive submission | Court: If moderators are agents, factfinder must decide whether their manual/substantive actions exceeded permissible accessibility‑enhancing activities so that storage was not solely at users' direction |
| Whether LiveJournal lacked actual or red-flag knowledge and whether it financially benefited with right/ability to control infringing activity | Mavrix argues LiveJournal had or should have had knowledge (watermarks, prevalence) and benefited from advertising tied to infringing content | LiveJournal points to lack of DMCA notice, contested knowledge, and that its control was not "something more" than removal ability | Court: On remand factfinder must assess actual and red-flag knowledge (including watermark evidence) and whether LiveJournal derived a financial benefit tied to infringing activity it had right/ability to control |
Key Cases Cited
- Community for Creative Non-Violence v. Reid, 490 U.S. 730 (Sup. Ct.) (applies common-law agency to copyright issues)
- Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004) (DMCA safe harbors interpreted under existing principles of law)
- Columbia Pictures Indus. v. Fung, 710 F.3d 1020 (9th Cir. 2013) (agency principles used to attribute intent and evaluate service-provider liability)
- UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013) (§ 512(c) scope includes access‑facilitating processes; limits on provider activities that remain within user‑directed storage)
- Viacom Int’l Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir.) (analysis of red‑flag knowledge and manual selection/syndication near the line of § 512(c) protection)
- Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir.) (distinguishing passive hosting under § 512(a) and considerations of provider control and inducement)