Takeaway: A common law agency theory analysis applies to the safe harbor defense under the Digital Millennium Copyright Act.
In Mavrix Photographs, LLC v. LiveJournal, Inc., a new issue was presented under the Digital Millennium Copyright Act’s (“DMCA”) safe harbor protection provision 17 U.S.C. § 512(c). The issue was whether common law agency theories apply to the safe harbor defense under the DMCA. Mavrix brought this suit for copyright infringement because LiveJournal published 20 of Mavrix’s photos on their website.
The district court held that the DMCA safe harbor provision protected LiveJournal because Mavrix’s photos were stored at the discretion of the user and that the common law theories of agency did not apply to a safe harbor analysis. The Ninth Circuit Court of Appeals disagreed, stating that common law agency theories do apply to the DMCA analysis and that the issues surrounding the agency status of the moderators on LiveJournal’s site should be remanded for trial.
The Ninth Circuit determined that the trial court was focused on § 512(a) when they should have focused on § 512(c). The difference here was determinative in this appeal because § 512(a) is directed to the issue of infringing material that is passively and temporarily placed on a computer server whereas § 512(c) is focused on the service provider’s role in making material stored by a user publicly accessible on its site. The court said that public accessibility was important because the inquiry here turned to the role of the moderators in screening and posting user submissions of content.
The reason the Ninth Circuit determined that the rules of agency apply in this situation is because the Supreme Court has applied common law involving federal copyright law and the DMCA. The Ninth Circuit and other courts have applied agency law to determine things like whether a service provider was responsible under the DMCA for copyright infringement by its employees, whether a service provider was responsible under the DMCA for copyright infringement by its contractors, and whether a service provider is responsible under the DMCA for acts by its moderators.
For these reasons, the Ninth Circuit determined that there was a genuine issue of material fact as to whether the moderators were LiveJournal’s agents.
