BWP Media USA, Inc. v. Clarity Digital Group, LLC
820 F.3d 1175
| 10th Cir. | 2016Background
- BWP (photographer/licensor) sued AXS (operator of Examiner.com) for copyright infringement after Examiner.com hosted 75 BWP photographs without license.
- Examiner.com content is produced by independent contractors called "Examiners" under contracts labeling them independent contractors and prohibiting infringement; AXS also provided a licensed photo bank.
- AXS removed the photographs and notified BWP after a July 2013 takedown letter.
- AXS invoked the DMCA §512(c) safe harbor, arguing the images were stored at the direction of users (Examiners) and that AXS lacked actual or apparent knowledge of infringement.
- The district court granted summary judgment for AXS; the Tenth Circuit affirmed, addressing (1) whether Examiners qualify as "users" and whether AXS directed storage, and (2) whether AXS had actual/circumstantial knowledge or control that defeats safe harbor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Examiners are "users" under §512(c) | Examiners are agents/employees or otherwise not "users" so AXS cannot claim user-directed storage | "User" has plain meaning: anyone who uses the service; Examiners used the service and contracts label them independent contractors | Examiners are "users"; plain meaning applies and contract language supports independent-contractor status |
| Whether infringing material was stored at AXS's direction (control) | AXS directed content by assigning topics, soliciting posts, and suggesting images, thus exercising control that defeats safe harbor | General editorial direction and encouragement to use photos (with licensed bank available) do not amount to direction to store infringing material | No evidence AXS directed Examiners to post infringing content; editorial guidance and licensed photo supply insufficient to show control that defeats safe harbor |
| Whether AXS had actual or red-flag knowledge of infringement | Knowledge that celebrity photos were posted and encouragement to use photos shows willful blindness or constructive knowledge | General awareness that users might post copyrighted content is insufficient; no specific knowledge or red flags existed; AXS provided licensed images and had policies forbidding infringement | AXS lacked actual or red-flag knowledge; mere hosting of copyrightable content or general awareness is insufficient to defeat safe harbor |
| Whether Examiners' knowledge imputes to AXS via agency principles | Examiners' knowledge should be imputed to AXS, defeating safe harbor | No basis to treat Examiners as agents for imputation; issue was not preserved below | Imputation argument waived on appeal; in any event record lacks agency basis to impute knowledge |
Key Cases Cited
- Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012) (discussing DMCA §512 and online service provider liability)
- UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir. 2013) (general knowledge of hostable copyrightable material insufficient for red-flag knowledge)
- Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020 (9th Cir. 2013) (active inducement or encouragement of infringement defeats safe harbor)
- Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) (analysis of service provider safe harbor conditions)
- Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (agency/employee-status principles in copyright contexts)
- Thomas v. Metropolitan Life Insurance Co., 631 F.3d 1153 (10th Cir. 2011) (statutory interpretation: apply plain meaning when statutory text is clear)