By Jody Coultas, J.D.
Internet service provider Polyvore, Inc. was not liable for copyright infringement based on images copyrighted by BWP Media USA Inc. that were uploaded by users of Polyvore’s website, according to the federal district court in New York City (BWP Media USA Inc. v. Polyvore, Inc., July 15, 2016, Abrams, R.).
BWP, which owns the copyright on a variety of celebrity photographs, alleged that Polyvore infringed the copyrights by displaying the copyrighted photographs on its website polyvore.com. Users of polyvore.com can upload images, which then receive a hyperlink back to the original site the image was uploaded from. Users can then store the image, modify the background, and superimpose the image on top of another image. Polyvore employees are not involved in displaying the images, and do not screen the source sites or content before displaying the images.
There was no dispute that BWP held registrations on each of the photographs at issue, and that each image was displayed on polyvore.com without BWP’s permission. BWP argued that Polyvore’s software stores duplicate copies of images clipped by users to the website, and that it created nine copies of the original image in varying sizes. Polyvore automatically created one copy of the images uploaded and saved it to its servers.
Direct infringement. Polyvore was entitled to summary judgment on its direct infringement claim, according to the court. The Second Circuit has imposed a volitional conduct requirement in direct infringement claims. Other than in very limited circumstances, New York courts have dismissed direct infringement claims where the plaintiff can only show that a defendant created and housed automated systems where copyrighted works were copied. There was no evidence that Polyvore acted volitionally. Polyvore does not post the images on its website, and any indexing or storage is the result of an automated process. Also, there was nothing to suggest that Polyvore intended for its software to infringe copyrights held by others.
Contributory infringement. Even assuming that Polyvore knew of the infringing activity and contributed to the infringement, Polyvore was shielded from liability for contributory infringement by the Sony-Betamax rule. Based on the Sony-Betamax rule, a defendant is not liable for infringement where its product is widely used for legitimate purposes or is merely capable of substantial noninfrining uses.Polyvore’s software was undisputably capable of substantial noninfringing use.
Vicarious infringement. Polyvore was entitled to summary judgment of the vicarious infringement claim, according to the court. There was no evidence regarding Polyvore’s ability to supervise or control the activity of its users, or that Polyvore benefitted financially from the infringement.
Induced infringement. BWP could not show induced infringement because there was no evidence that Polyvore purposely sought to infringe the copyrights, according to the court.
Attorney fees. Attorney fees were not warranted in this case, the court decided. BWP’s arguments were not objectively unreasonable or frivilous. The claims were plausible when filed, and the inability to substnatiate the claims did not requie attorney fees. Although BWP did not engage in the discovery process, there was no bad faith or misconduct.
The case is No. 13-CV-7867 (RA).
Attorneys: Craig B. Sanders (Sanders Law, PLLC) for BWP Media USA Inc. d/b/a Pacific Coast News and National Photo Group, LLC. Orin Snyder (Gibson, Dunn & Crutcher, LLP) for Polyvore, Inc.
Companies: BWP Media USA Inc.; Polyvore, Inc.
MainStory: TopStory Copyright TechnologyInternet NewYorkNews
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