Livejournal is a social media platform that allows users to create thematic communities by posting content and comments. LiveJournal has three types of unpaid administrative roles to manage the communities, “moderators,” “maintainers,” and “owners.” All three roles review member posts and remove them if they violate community rules. However, “maintainers” can appoint and remove “moderators” while an “owner” can appoint and remove both “moderators” and “maintainers.” In addition to the three unpaid roles, LiveJournal sometimes hires people to work as head moderator of sorts for certain communities.

In 2010, LiveJournal hired and appointed Brendan Delzer as the “head leader” of its most popular community, “Oh No They Didn’t!” (ONTD). Delzer’s job was to grow the site and run ads while fulfilling moderator duties. Several years after Delzer’s appointment, Mavrix, a company that specializes in candid photos of celebrities, sued LiveJournal for copyright infringement of 20 photos posted on ONTD between 2010 and 2014. 

LiveJournal presented a defense under § 512(c) safe harbor of the Digital Millennium Copyright Act. Under this statute, a service provider like LiveJournal must show it can meet the threshold requirement that the copyrighted material was posted “at the direction of a user” before proceeding to the next step of the defense. 

At the heart of the threshold requirement is whether the unpaid moderators are considered to be LiveJournal’s agents. While Mavrix’s assertion that the unpaid moderators were LiveJournal’s agents, the appellate court ruled that there was a genuine issue of fact on the question of the moderator’s agent status. What are the possible arguments Mavrix could make to assert that the moderators are LiveJournal’s agents? What information or evidence is needed to show unpaid moderators had an agency relationship with LiveJournal? What evidence would be sufficient?