Mavrix Photographs, LLC, a California limited liability company, Plaintiff-Appellant,
LiveJournal, Inc., Defendant-Appellee.
Submitted October 7, 2016 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 8:13-cv-00517-CJC-JPR Cormac
J. Carney, District Judge, Presiding
Afrasiabi (argued), Christopher W. Arledge, and John
Tehranian, One LLP, Newport Beach, California, for
Mitchell Barsky (argued), Blaine H. Evanson, and Brandon J.
Stoker, Gibson Dunn & Crutcher LLP, Los Angeles,
California, for Defendant-Appellee.
Before: Harry Pregerson, Richard A. Paez, and Morgan
Christen, Circuit Judges.
Millennium Copyright Act
panel (1) reversed the district court's holding, on
summary judgment, that the defendant was protected by the
safe harbor of the Digital Millennium Copyright Act from
liability for posting the plaintiff's photographs online
and (2) vacated a discovery order.
panel held that the safe harbor set forth in 17 U.S.C. §
512(c) would apply if the photographs were posted at the
direction of users. The defendant, a social media platform,
posted the photographs after a team of volunteer moderators,
led by an employee of the defendant, reviewed and approved
them. The panel held that whether the photographs were posted
at the direction of users depended on whether the acts of the
moderators could be attributed to the defendant. Disagreeing
with the district court, the panel held that the common law
of agency applied to the defendant's safe harbor defense.
Because there were genuine factual disputes regarding whether
the moderators were the defendant's agents, the panel
reversed the district court's summary judgment and
remanded the case for trial.
panel also discussed the remaining elements of the safe
harbor affirmative defense. If an internet service provider
shows that the infringing material was posted "at the
direction of the user, " it must then also show that (1)
it lacked actual or red flag knowledge of the infringing
material; and (2) it did not financially benefit from
infringements that it had the right and ability to control.
The panel held that to fully assess actual knowledge, the
fact finder must consider not only whether the copyright
holder has given notice of the infringement, but also the
service provider's subjective knowledge of the infringing
nature of the posts. The panel held that to determine whether
the defendant had red flag knowledge, the fact finder would
need to assess whether it would be objectively obvious to a
reasonable person that material bearing a generic watermark
or a watermark referring to the plaintiff's website was
infringing. When assessing the service provider's right
and ability to control the infringements, the fact finder
should consider the service provider's procedures that
existed at the time of the infringements and whether the
service provider had "something more" than the
ability to remove or block access to posted materials.
the panel vacated the district court's order denying
discovery of the moderators' identities.
Mavrix Photographs ("Mavrix") appeals the district
court's summary judgment in favor of Defendant
LiveJournal. Mavrix sued LiveJournal for posting twenty of
its copyrighted photographs online. The district court held
that the Digital Millennium Copyright Act's
("DMCA") § 512(c) safe harbor protected
LiveJournal from liability because Mavrix's photographs
were posted at the direction of the user. 17 U.S.C. §
eligible at the threshold for the § 512(c) safe harbor,
LiveJournal must show that the photographs were posted at the
direction of the user. Although users submitted Mavrix's
photographs to LiveJournal, LiveJournal posted the
photographs after a team of volunteer moderators led by a
LiveJournal employee reviewed and approved them. Whether
these photographs were truly "posted at the direction of
the user, " or instead whether LiveJournal itself posted
the photographs, depends on whether the acts of the
moderators can be attributed to LiveJournal. The issue we
must decide is whether the common law of agency applies to
LiveJournal's safe harbor defense. The district court
ruled that the common law of agency does not apply to this
analysis. We disagree and conclude that it does. As there are
genuine factual disputes regarding whether the moderators are
LiveJournal's agents, we reverse the district court's
summary judgment and remand for trial.
the district court ruled on the remaining elements of the
safe harbor, we also proceed to discuss those elements in
order to provide guidance to the district court and parties
on remand. Finally, we vacate the district court's order
denying discovery of the moderators' identities because
the agency determination may affect this analysis.
is a social media platform. Among other services, it allows
users to create and run thematic "communities" in
which they post and comment on content related to the theme.
LiveJournal communities can create their own rules for
submitting and commenting on posts.
set up three types of unpaid administrator roles to run its
communities. "Moderators" review posts submitted by
users to ensure compliance with the rules."Maintainers" review and delete
posts and have the authority to remove moderators and users
from the community. Each community also has one
"owner" who has the authority of a maintainer, but
can also remove maintainers.
protects against copyright infringement in its communities
through various mechanisms. LiveJournal follows the formal
notice and takedown procedures outlined in the DMCA by
designating an agent and form to report infringement, and by
promptly removing infringing posts and prohibiting repeat
abusers from the community. 17 U.S.C. § 512(c)(1)(C).
LiveJournal's Terms of Service instructs users not to
"[u]pload, post or otherwise transmit any Content that
infringes any patent, trademark, trade secret, copyright or
other proprietary rights."
No They Didn't! ("ONTD")
a popular LiveJournal community which features up-to-date
celebrity news. Users submit posts containing photographs,
videos, links, and gossip about celebrities' lives. ONTD
moderators review and publicly post some of the submissions.
Other users engage in conversations about the celebrity news
in the comments section of each post. For example, one of the
ONTD posts at issue contained photographs that Mavrix had
taken which appeared to show that super-celebrity
Beyoncé was pregnant. Users speculated in the comments
section of that post that Beyoncé was indeed
other LiveJournal communities, ONTD created rules for
submitting and commenting on posts. ONTD's rules pertain
to both potential copyright infringement and substantive
guidance for users. For example, one rule instructs users to
"[i]nclude the article and picture(s) in your post, do
not simply refer us off to another site for the goods."
Another rule provides "Keep it recent. We don't need
a post in 2010 about Britney Spears shaving her head."
ONTD's rules also include a list of sources from which
users should not copy material. The sources on the list have
informally requested that ONTD stop posting infringing
material. ONTD has also automatically blocked all material
from one source that sent ONTD a cease and desist letter.
has nine moderators, six maintainers, and one owner. ONTD
users submit proposed posts containing celebrity news to an
internal queue. Moderators review the submissions and
publicly post approximately one-third of them. Moderators
review for substance, approving only those submissions
relevant to new and exciting celebrity news. Moderators also
review for copyright infringement, pornography, and
ONTD was created, like other LiveJournal communities, it was
operated exclusively by volunteer moderators. LiveJournal was
not involved in the day-to-day operation of the site. ONTD,
however, grew in popularity to 52 million page views per
month in 2010 and attracted LiveJournal's attention. By a
significant margin, ONTD is LiveJournal's most popular
community and is the only community with a "household
name." In 2010, LiveJournal sought to exercise more
control over ONTD so that it could generate advertising
revenue from the popular community. LiveJournal hired a then
active moderator, Brendan Delzer, to serve as the
community's full time "primary leader." By
hiring Delzer, LiveJournal intended to "take over"
ONTD, grow the site, and run ads on it.
"primary leader, " Delzer instructs ONTD moderators
on the content they should approve and selects and removes
moderators on the basis of their performance. Delzer also
continues to perform moderator work, reviewing and approving
posts alongside the other moderators whom he oversees. While
Delzer is paid and expected to work full time, the other
moderators are "free to leave and go and volunteer their
time in any way they see fit." In his deposition, Mark
Ferrell, the General Manager of LiveJournal's U.S.
office, explained that Delzer "acts in some capacities
as a sort of head maintainer" and serves in an
"elevated status" to the other moderators. Delzer,
on the other hand, testified at his deposition that he does
not serve as head moderator and that ONTD has no
is a celebrity photography company specializing in candid
photographs of celebrities in tropical locations. The company
sells its photographs to celebrity magazines. According to
Mavrix, infringement of its photographs is particularly
devastating to its business model. Since
photographs break celebrity news, such as the pregnancy of
Beyoncé, infringing posts on sites like ONTD prevent
Mavrix from profiting from the sale of the photographs to
filed an action for damages and injunctive relief against
LiveJournal alleging copyright infringement on the basis of
twenty Mavrix photographs posted on ONTD. ONTD posted the
photographs in seven separate posts between 2010 and 2014.
Some of these photographs contained either a generic
watermark or a specific watermark featuring Mavrix's
website "Mavrixonline.com." To the best of his
recollection, Delzer did not personally approve the seven
posts. LiveJournal has no technological means of determining
which moderator approved any given post. Mavrix did not
utilize LiveJournal's notice and takedown procedure to
notify LiveJournal of the infringements. When Mavrix filed
this lawsuit, LiveJournal removed the posts.
discovery, Mavrix filed two motions to compel responses to
its interrogatories seeking the identity of the ONTD
moderators. The magistrate judge denied the first motion,
finding that Mavrix had not met and conferred with
LiveJournal in good faith. The magistrate judge denied the
second motion to compel because Mavrix failed to notify the
anonymous parties of the pending motion. Mavrix moved the
district court for review of the magistrate judge's