Mavrix Photographs, LLC v. Livejournal, Inc.

Plaintiff Mavrix; Photographs (“Mav-rix”) appeals the district court’s summary judgment in favor of Defendant LiveJour-nal. 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 stored at the direction of the user. 17 U.S.C. § 512 (c).

To be eligible at the threshold for the § 512(c) safe harbor, LiveJournal must show that the photographs were stored at the direction of the user. Although users submitted Mavrix’s photographs to LiveJournal, LiveJournal posted the pho *1049 tographs after a team of volunteer moderators led by a LiveJournal employee reviewed and approved them. Whether these photographs were truly stored at the direction of the user, or instead whether LiveJournal is responsible for 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…