“The court critically observed that [Davis’] allegations ‘merely suggest that [Pinterest] operated its website indifferent to the risk of copyright infringement generally and indifferent to the difficulty copyright holders may have in identifying misuse of their works’ but did not show how Pinterest was willfully blind to Davis’ copyright.”
On March 9, 2021, a federal court in the Northern District of California dismissed the contributory infringement claim first filed by Harold Davis (hereinafter, “Davis”), the Plaintiff, on November 20, 2019 against Pinterest, Inc. (hereinafter, “Pinterest”), the Defendant, in Davis v. Pinterest, Inc., 2021 WL 879798 (N.D. Cal. Mar. 9, 2021).
Davis filed a complaint for both direct and contributory copyright infringement. The order of March 9, 2021 was, however, limited to Pinterest’s challenge to the claim of contributory infringement.
Davis is a professional photographer and a digital artist. He argued that Pinterest “does not have in place a system of screening the Pins for copyright notices or other indicia of copyright ownership associated with the “pinned” images.” He alleged that instead of combating the copyright infringements on its platform, Pinterest in fact monetizes those images.
Davis alleged that Pinterest, through its website and application, infringes copyright laws by deliberately removing indicia of copyright ownership to render its paid advertisement more effective and to actively thwart the efforts of copyright owners to police the misuse of their works. According to Davis, this has led to multiple examples of instances where his federally copyrighted images were used by Pinterest for the company’s own benefit.
Davis further argued that Pinterest was willfully blind to the copyright infringement by third parties on its platform. On the basis of these facts and allegations, Davis contended that Pinterest is liable for contributory negligence.
Pinterest, on the other hand, challenged Davis’ claims on the ground that to prove the contributory infringement claim, he was required to plead that Pinterest had actual knowledge of specific examples of infringement of Davis’ copyrights and Davis had failed to do so.
Contributory Infringement: The Threshold
The courts over the years have laid down certain thresholds to establish a cause for contributory copyright infringement.
Placing reliance upon the decision of the Ninth Circuit in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), as amended (Apr. 3, 2001)., 239 F.3d 1013, the court held in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1169 (9th Cir. 2007) that the Plaintiff must establish “direct infringement by third parties” since secondary “liability for copyright infringement does not exist in the absence of direct infringement by a third party”.
In Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 794–95 (9th Cir. 2007), the court laid down two prerequisites for the establishment of contributory infringement by a person:
- When (s)he has knowledge of another’s infringement; and
- When (s)he either materially contributes to or induces that infringement.
These points were reiterated and further clarified by the Ninth Circuit in Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 671 (9th Cir. 2017) especially in the online context. Relying on its previous judgements, the court held that a “computer system operator” is liable under a material contribution theory of infringement “if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.”
The court also defined inducement in such cases as taking affirmative steps to foster infringement amounts.
The Ninth Circuit, in the case of Luvdarts, LLC v. AT & T Mobility, LLC, 710 F.3d 1073 (9th Cir. 2013), laid down two grounds needed to establish willful blindness:
(1) The Defendant “subjectively believed” that infringement was likely occurring on its website; and
(2) The Defendant took “deliberate actions to avoid learning about the infringement”.
The court further observed that willful blindness can act as a substitute for the requirement of establishing knowledge when the blindness is of specific facts. Thus, willful blindness must be to the alleged specific instances of infringement, and not just to general overall infringement of copyright.
Judge Haywood S. Gilliam, Jr. concurred with the threshold claims raised by Pinterest and held that Davis must have pleaded that Pinterest had “actual knowledge of specific acts of infringement”. The court found that Davis not only failed to plead the actual knowledge by Pinterest but also inadequately pleaded constructive knowledge of the infringement and thus his claim for contributory infringement by Pinterest could not stand.
On Davis’ contentions of Pinterest’s willful blindness towards infringement, the court critically observed that his allegations “merely suggest that [Pinterest] operated its website indifferent to the risk of copyright infringement generally and indifferent to the difficulty copyright holders may have in identifying misuse of their works” but did not show how Pinterest was willfully blind to Davis’ copyright.
The court therefore held, “[Davis] has failed to allege adequately that [Pinterest] had the necessary knowledge of infringement, and his contributory infringement claim thus fails.”
An Open Door
While Pinterest emerged victorious in this suit, the sigh of relief for platforms may not be long lived.
A thorough reading of the order opens the door for more cases to be filed against Pinterest and other such platforms that engage in infringement of copyrights, intentionally or unintentionally, and those that do not take substantial significant steps to combat such infringements. The judgment lists the reasons as to why Davis’ claims could not stand, but then goes into detailed discussion about what Davis should have pleaded to be successful. This may act as a guide to future lawsuits against such platforms. The main obstacle will be to meet the onerous requirement of proving knowledge—if not actual then at least constructive—of specific infringement by the defendant.
This decision—which may still be appealed—ultimately leaves one pondering what might have happened if Davis’ pleadings had not suffered from the infirmities noted by the court. It will also be interesting to see how the court rules on the pending direct infringement claims.
Image Source: Deposit Photos