“The courts have not accepted [ DMCA ] safe harbor protection simply because service providers advertise on their platforms alongside content uploaded by users.
The U.S. District Court for the Northern District of California ruled this week that the Safe Harbor provision of the Digital Millennium Copyright Act (DMCA) protects Pinterest against a photographer’s claim that the platform infringed his rights. copyright by displaying his works alongside advertisements in the form of “promoted pins.
Professional artist and photographer Harold Davis claimed that Pinterest infringed on 51 of his copyrighted works. In one example, Davis’ work “Kiss from a Rose” was displayed alongside a promoted pin for an art print titled “White Tea Roses by Neicy Frey”, which Davis said constituted commercial use. unauthorized from his work. He also took issue with the display and dissemination of his works in emails and push notifications to users. He estimated Pinterest’s “infringements during the three-year statute of limitations to be in the hundreds of thousands, if not millions”, and noted that “only one of his works, ‘Duet of Daffodils’, appeared on the Pinterest website 4,676 times in just two weeks.
Davis argued that Pinterest was ineligible for the DMCA safe harbor for the following reasons:
(1) Pinterest’s infringing activity is not “due to . . . storage at
management of a user”;
(2) Pinterest has “the right and ability to control” infringing activity; and
(3) Pinterest receives “a financial benefit directly attributable to the infringing activity”.
He did not challenge Pinterest users’ use of his works or Pinterest’s practice of creating variations of the works for standard display in order to be more compatible with the platform, but rather took very closely the “creation of variations and the use of algorithms to ‘select and display Applicant’s works in the context of advertising.”
The court dismissed this argument as unsupported by the record. The claim that Pinterest integrated data into Davis’s work to create or obtain signals for its ad algorithms was not supported by the evidence and misrepresented Pinterest’s testimony, the court added. The command explained:
Uncontested evidence in the filing indicates that the “integrations” discussed in the blog post and in the employee testimonial “are not data elements that are appended to an image file on the service.” See Dkt. No. 174-14 at ¶ 4. “Embeddings” is simply a technical term in machine learning that refers to the “clues (both visual and textual) that machine learning algorithms glean from pins, including understood from the image itself and the user-provided title and description.
The remaining assertion, that “using computer algorithms to analyze user engagement and tailor advertising precludes the application of Safe Harbor § 512(c)”, was not supported by case law. , the court continued. Davis’ problem wasn’t with infringing works uploaded by users, but with the idea that Pinterest would profit from them. “Rather than notify Pinterest of an alleged copyright infringement on its platform so that Pinterest can remove it, Plaintiff wants Pinterest to continue displaying its images on its website and mobile app, but he does not want Pinterest to take advantage of it in any way,” the court wrote.
Davis explained that “there was no avenue. . . for Mr. Davis to object to Pinterest’s commercial use of his works, but not request that the underlying pin be removed. He also noted that it would take him years to report each individual infringement case under existing notice-and-takedown procedures. But the court said, “Congress, not this Court, decided as a matter of policy who should bear the burden of identifying the offense in the first instance.”
Ultimately, the court found that Davis’ “new theory” that tracking user activity via algorithms or displaying ads on a platform constituted an offense was unsubstantiated. Citing Viacom International, Inc. v. YouTube, Inc.., 676 F.3d 19 (2d Cir. 2012) for illustrative purposes, the court noted that “the evidence in this case indicates that the algorithms used to identify and display organic Pins are distinct from the algorithms used to identify and display promoted pins in a user’s feed”, and thus simply “promote user access to user-uploaded content”.
Further, “courts have not denied safe harbor protection simply because service providers advertise on their platforms alongside user-uploaded content”, and, in any event, Davis’ evidence did not “establish that Pinterest obtained a financial benefit clearly attributable to the alleged infringement”. here.” The court concluded:
Basically, the plaintiff’s theory seems to be that by displaying his works, Pinterest is able to drive traffic to Pinterest’s website, where he earns revenue from a separate advertisement. The Ninth Circuit explicitly argued that this was not enough. In the context of the pornography website in Motherless, the Court recognized that “[o]Of course, the more pornography Motherless had, the more users it would attract, and more views would lead to more ad revenue. See Motherless, 885 F.3d at 613. But “[t]he uses the words “the” and “directly” in the act. . .must mean that some revenue must be clearly attributable to the infringing material at issue. »
Pinterest was represented by a Wilson Sonsini team led by David Kramer and including partners Tom Wakefield, Andrew Kramer and Qifan Huang.