840 F. Supp. 2d 724
S.D.N.Y.2012Background
- Wolk, pro se, moves for partial summary judgment and related relief; Kodak Defendants and Photobucket oppose with cross-motions for summary judgment; court denies plaintiff’s motions and grants defendants’ motions.
- Wolk is a professional artist whose images are copyrighted; Photobucket hosts user-uploaded content and earns mostly from advertising; Kodak Imaging Network operated as KODAK Gallery, licensing relation with Photobucket under an Agreement (not a party to the Agreement).
- Photobucket’s Terms of Use require copyright respect and DMCA procedures; Photobucket asserts it uses DMCA takedown notices, has a designated agent, and pays profits independent of infringed content; Kodak Imaging Network and Photobucket dispute Wolk’s control and role over infringement.
- Wolk contends Kodak Defendants copied and produced products of her art without license; Wolk argues Photobucket and Kodak defendants benefit from infringements under the Agreement; Wolk alleges DMCA takedown notices and responses were insufficient or noncompliant.
- Court has already addressed multiple procedural motions; discovery closed; Court denies Wolk’s motion to amend and to admit expert Dr. Sarvis; Court grants Kodak and Photobucket’s summary judgment motions; Wolk’s claims against Kodak are limited to direct infringement, which the court finds not proven; safe harbor under DMCA protects Photobucket; secondary infringement claims against Photobucket are dismissed; final disposition is that the defendants’ motions are granted and Wolk’s motions denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct infringement by Kodak Defendants | Wolk contends Kodak copied and produced Wolk’s images without license. | Kodak argues no volitional conduct; automated processes with no human intervention. | Kodak not liable for direct infringement. |
| Photobucket under DMCA safe harbor | Photobucket lacks safe harbor and profits from infringements. | Photobucket qualifies as a service provider; it designates an agent and promptly removes infringing content. | Photobucket entitled to DMCA safe harbor; not liable. |
| Contributory or vicarious infringement by Photobucket | Photobucket’s relationship with Kodak and knowledge of infringements support secondary liability. | No knowledge of specific infringements; no active inducement or supervision; safe harbor applies. | Counts III-IV dismissed; no contributory or vicarious infringement. |
| Motion to amend and expert testimony | Amend to add unfair competition claim; admit Dr. Sarvis as expert. | Late filing; information insufficient for Daubert; facts available before deadline. | Motion to amend denied; motion to admit expert testimony denied. |
Key Cases Cited
- Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (volition standard for direct infringement; store-like liability requires more than generic ownership of a machine)
- Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010) (discusses safe harbor for service providers and knowledge standard)
- Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008) (definition and application of safe harbor under DMCA § 512)
- Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124 (S.D.N.Y. 2009) (appropriate use of Daubert and expert testimony standards in copyright cases)
- Perfect 10, Inc. v. CC Bill LLC, 488 F.3d 1102 (9th Cir. 2007) (standard for service provider liability and safe harbor)