Citation Edit

Wolk v. Kodak Imaging Network, Inc., 2011 WL 940056 (S.D.N.Y. March 17, 2011) (full-text).

Factual Background Edit

Plaintiff Sheila Wolk is a visual artist who discovered copies of her copyrighted images on Photobucket. Photobucket is a web service that hosts billions of photos for users around the world. After discovering the images, plaintiff sent several notices to Photobucket requesting their removal; some of these notices were compliant with the Digital Millennium Copyright Act ("DMCA") and others were not. Whenever Photobucket was able to reasonably identify the image or images referenced in plaintiff's notice, it removed the images in due course. Like Viacom[1] and UMG Recordings[2] before her, plaintiff got tired of sending letters and expected Photobucket to remove all of her images without further notice. Because Photobucket did not conduct its own search for Plaintiff's images, plaintiff brought this action for a preliminary injunction.

District Court Proceedings Edit

A plaintiff seeking a preliminary injunction must satisfy a three-part test showing: (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor; and (3) that the public interest weighs in favor of granting an injunction.

The DMCA provides a series of “safe harbors” for service providers that meet certain eligibility requirements. In order to qualify, a defendant must be a “service provider” as defined by the DMCA, it must adopt and reasonably implement a policy for the termination of users who are repeat infringers, and it must accommodate and not interfere with standard technical measures used by copyright owners to identify their copyrighted works.

The court spends little time determining that Photobucket, as a website that allows the hosting and sharing of online photos, is a service provider under the DMCA. Further, Photobucket has certain policies in effect that provide for the removal of infringing material upon request of a copyright owner, and the termination of users who are shown to repeatedly infringe the content of others. Because Photobucket either meets all requirements for a DMCA safe harbor, or plaintiff fails to contest Photobucket’s allegations of compliance, Photobucket must have actual or apparent knowledge of infringement to be liable to plaintiff and establish a likelihood of success on the merits.

Plaintiff’s motion relies on her contention that her past notices serve as DMCA-compliant notice of other material that may be found on Photobucket’s site. This position places an unduly burden on any ISP seeking a safe harbor under the DMCA and would require service providers to continually monitor their sites for infringing material. It should be noted that avoiding such a requirement for independent inquiry was one of the driving motivations behind enactment of the DMCA safe harbor in the first place.

Finally, plaintiff argued that Photobucket’s relationship with Kodak under which it receives a share of sales derived from, is “a financial benefit directly attributable to the infringing activity.” While such a finding might deny Photobucket a safe harbor pursuant to 17 U.S.C. §512(c)(1)(B), there was no dispute that Photobucket derived financial gain from all users of its site, not only in connection with infringing material.

In denying plaintiff’s motion for a preliminary injunction, the court noted that "[i]rreparable harm is the 'single most important prerequisite' for a preliminary injunction to issue.”[3] By plaintiff’s own admission, many of the allegedly infringing photos had been on Photobucket’s site since 2008, leading the court to find an unreasonable delay in bringing this action. Further, if the plaintiff was aware of the infringing material that had not yet been removed, she was well within her rights and ability to issue additional take-down notices.

Her desire to shift the burden to Photobucket did not lead to a showing of irreparable harm and the balance of hardships certainly did not weigh in plaintiff’s favor when a method of removing the images in question already exists.

References Edit

  1. Viacom Int'l, Inc. v. YouTube, Inc., 718 F.Supp.2d 514, 518 (S.D.N.Y. 2010) (full-text).
  2. UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F.Supp.2d 1099, 1110 (C.D. Cal. 2009) (full-text).
  3. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (full-text).

References Edit

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