Lynk Media LLC v. Mediaite, LLC

Background

Lynk Media alleged that it owned copyrights in three videos originally created and published by Oliya Fedun, professionally known as “Oliya Scootercaster.” Video 1 showed audience members heckling Representative Alexandria Ocasio-Cortez at a town hall. Video 2 showed protesters interrupting a constituent forum with her. Video 3 showed a physical altercation at a protest outside Gracie Mansion in New York City.

Lynk Media alleged that Mediaite used each video in an article on its website without a license or permission. It alleged that Mediaite also provided Video 3 for publication on MSN, a third-party website. Lynk Media asserted a direct copyright-infringement claim based on Mediaite’s uses of the three videos and a contributory-infringement claim based on the publication of Video 3 on MSN.

Mediaite moved to dismiss the amended complaint under Rule 12(b)(6), which tests whether a complaint adequately states a legally plausible claim. Mediaite argued that its use of Videos 2 and 3 through “embedding” did not infringe copyright, that Twitter’s terms of service gave it a license to use those videos, and that its use of all three videos was protected by fair use. Mediaite also argued that Lynk Media had not adequately pleaded contributory infringement concerning Video 3’s publication on MSN.

Direct Copyright Infringement

The court explained that a copyright-infringement claim requires allegations that the plaintiff owns a valid copyright and that the defendant copied original elements of the copyrighted work. The court concluded that Lynk Media adequately alleged ownership of valid copyrights in all three videos and adequately alleged that Mediaite infringed its exclusive public-display right by using the videos in its articles.

Embedding and Fair Use

The court denied dismissal based on Mediaite’s embedding defense. Mediaite relied on a “server test” under which a website may avoid displaying a copyrighted image if it merely supplies HTML instructions directing a user’s browser to content stored on a third-party server. The court noted that courts in the Southern District of New York had rejected that test as inconsistent with the Copyright Act’s text and legislative history. In any event, the complaint and its exhibits did not establish what technological process Mediaite actually used. The court therefore declined to assume at the dismissal stage that Mediaite had used embedding in the manner it claimed.

The court also denied dismissal based on fair use. Fair use is an affirmative defense that requires a context-sensitive review of factors including the purpose of the use, the nature of the copyrighted work, the amount used, and the effect on the work’s potential market. The court said the complaint did not make Mediaite’s entitlement to fair use clear enough to justify dismissal. In particular, the allegations and still images did not establish how much of each video Mediaite used or the full nature of the material shown.

License Defense

The court rejected Mediaite’s request for dismissal based on a purported license from Twitter. The applicable Twitter terms granted Twitter a license to use posted content and gave Twitter the right to sublicense content, but the court found that the terms did not clearly grant a sublicense to every company or individual that might publish the content elsewhere. The terms could instead be read to limit that authority to Twitter’s “ecosystem partners,” and Mediaite did not claim to be such a partner.

The court also noted that the users who posted Videos 2 and 3 on Twitter might not have owned the videos or had authority to grant rights in them. Because a person can license only copyright interests that person owns or controls, the court could not conclude from the face of the complaint and the terms of service that Mediaite had a sublicense.

Contributory Infringement on MSN

Contributory copyright infringement requires an underlying direct infringement by another party, plus allegations that the defendant knew or had reason to know about that infringement and induced, caused, or materially contributed to it.

The court found that Lynk Media adequately alleged that the owner or operator of MSN directly infringed Lynk Media’s copyright by using Video 3 on MSN. Although the allegations were somewhat vague, the use of Video 3 on MSN appeared similar to Mediaite’s use of the video in its own article, providing a reasonable basis to infer a separate infringement.

The court also found sufficient allegations of Mediaite’s participation and knowledge. Lynk Media alleged that Mediaite provided Video 3 for use on MSN, maintained an ongoing relationship with MSN’s owner or operator, and used MSN to amplify its content. Taken together, those allegations plausibly supported an inference that Mediaite supplied the video to the alleged direct infringer and had constructive knowledge of the alleged infringement.

Disposition

Judge Castel denied Mediaite’s motion to dismiss in its entirety and directed the Clerk of Court to terminate the motion pending at ECF 17. The opinion did not decide at this stage whether Mediaite ultimately infringed the copyrights, whether its use was fair, whether it had a valid license, or whether it will ultimately be liable for contributory infringement.