Mavrix v. LiveJournal

Document type
Court Decision

This detailed and somewhat confused opinion concerns LiveJournal, a blog hosting site. LiveJournal’s most successful hosted content, by a wide margin, is a celebrity gossip blog called Oh No They Didn’t. The platform stepped beyond its usual role in relation to this blog: it hired and paid a content moderator, who in turn managed teams of volunteer moderators. The teams rejected material on grounds of pornography, harassment, irrelevance (for gossip that is too old), and more - in sum, rejecting some 2/3 of uploads. They also enforced a list of sources that were not to be used on copyright grounds. The Court considers the platform’s defenses to copyright infringement under the Digital Millennium Copyright Act (DMCA), and concludes that the common law of agency applies.

The Court holds that a jury must decide the question whether LiveJournal was acting within the scope of DMCA 512(c) -- whether its actions constitute hosting content at the direction of users. It reviews case law on volitional conduct and agency, concluding that “accessibility-enhancing” features may fall within the scope of the DMCA 512(c) safe harbor, while other non-accessibility-enhancing features may not. It also says that the existence of red flag knowledge, which it calls “infringement ... immediately apparent to a non-expert,” is a question of fact for the jury. Finally, concludes, in seeming tension with other cases, that DMCA-piercing findings of right and ability to control + direct financial benefit apply to the entire service, rather than specific works.

Topic, claim, or defense
Document type
Court Decision
Issuing entity
Appellate Domestic Court
Type of service provider
Host (Including Social Networks)
Issues addressed
Trigger for OSP obligations
OSP obligation considered
Block or Remove
Type of law
General effect on immunity
General intermediary liability model
Takedown/Act Upon Knowledge (Includes Notice and Takedown)