Davis v. Pinterest, Inc.

Background

Harold Davis, an artist and professional photographer, claimed that Pinterest, Inc. infringed the copyrights in 51 of his works. He did not challenge users’ uploading the works or saving them to personal boards. Instead, he challenged Pinterest’s display of the works near promoted advertisements and its display or distribution of the works through emails and push notifications.

Pinterest operates a website and mobile application where users upload images and videos to virtual boards. Pinterest stores the uploaded originals and automatically creates copies, called variants, in different sizes so images load faster. It uses algorithms to select content for users’ feeds, search results, and related-content displays. Pinterest earns revenue from third-party advertising, including advertisements shown in feeds containing user-uploaded content.

The case originally included direct and contributory copyright-infringement claims. The court dismissed the contributory-infringement claim, and the case proceeded on a single claim for direct copyright infringement. The parties filed cross-motions for summary judgment.

Scope of the alleged infringements

The court held that the June 4, 2021 spreadsheet was Davis’s final identification of the alleged infringements. Davis had been required to identify the alleged infringements by June 1, 2021, but he later attempted to add additional instances based on information Pinterest produced during discovery. The court found that the delay was not substantially justified or harmless: the new allegations were raised months after discovery closed and after summary-judgment briefing began, leaving Pinterest unable to effectively address them.

The court therefore limited the alleged infringements to those identified in the spreadsheet. The spreadsheet covered alleged activity involving 35 of the 51 works and Pinterest’s feeds. Notifications were not part of the remaining alleged infringements. The court also stated that the notifications appeared to contain hyperlinks rather than copies of Davis’s works and noted that hyperlinking alone does not involve actual copying.

DMCA safe harbor

Pinterest invoked the Digital Millennium Copyright Act’s safe harbor under 17 U.S.C. § 512(c). A safe harbor is statutory protection that can limit a service provider’s copyright liability for material stored at a user’s direction. The relevant provision requires, among other things, that the alleged infringement arise from storage at a user’s direction, that the service provider lack the required right and ability to control the infringing activity, and that it not receive a financial benefit directly attributable to the specific infringing activity.

The court found no genuine dispute of material fact on these requirements. First, the alleged infringement arose from storage at users’ direction. Users uploaded Davis’s works, and Pinterest’s creation of optimized variants and use of automated processes helped users access those uploads. The court relied on Ninth Circuit authority holding that this type of access-facilitating process can fall within the safe harbor.

Second, the court found that Pinterest did not have the type of control that defeats safe-harbor protection. Pinterest did not direct users to upload particular content, and the record did not show that it substantially influenced users’ uploading activity or intentionally induced infringement. Davis’s evidence that Pinterest controlled the algorithms and advertising displayed around the works did not establish the required control over users’ infringing activity.

Third, Davis did not identify evidence linking Pinterest’s revenue to a particular alleged infringement. His theory was that Pinterest’s advertising-based business model benefited from displaying his works and attracting users. The court held that this did not show a financial benefit directly attributable to the specific works at issue. The court also found that Pinterest used separate processes for displaying organic content and advertisements and that advertisements were targeted to users rather than to specific organic Pins.

The court rejected Davis’s theory that Pinterest embedded advertising-related information into the image variants. It found no record evidence that Pinterest added such information to the image files. Instead, the term “embeddings” referred to cues that machine-learning systems derived from images and user-supplied text; the models were based on, but not embedded within, the Pins.

Disposition

The court concluded that the DMCA safe harbor applied and barred Davis’s direct copyright-infringement claim. Because the safe harbor resolved the case, the court did not decide whether Davis independently established direct copyright infringement. The court granted Pinterest’s motion for summary judgment, denied Davis’s motion for summary judgment, directed the Clerk to enter judgment for Pinterest, and closed the case. Several other docket entries were terminated as moot.