Sarvis v. Polyvore, Inc.

Filing 80

District Judge Leo T. Sorokin: ORDER ON REPORT AND RECOMMENDATIONS entered. The Court hereby ADOPTS the Report and Recommendation, ALLOWS in part 56 the Motion to Dismiss, as to Counts IV and V, and OTHERWISE DENIES the Motion to Dismiss without prejudice to renewal of the arguments at summary judgment. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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ROBERT SARVIS,
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Plaintiff,
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v.
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Civil Action No. 12-12233-LTS
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POLYVORE, INC.,
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Defendant.
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ORDER ON REPORT AND RECOMMENDATION
March 25, 2015
SOROKIN, J.
After de novo review of Magistrate Judge Bowler’s comprehensive Report and
Recommendation and the objections filed by Defendant, the Court hereby ADOPTS the Report
and Recommendation, ALLOWS the Motion to Dismiss, Doc. No. 56, as to Counts IV and V,
and OTHERWISE DENIES the Motion to Dismiss without prejudice to renewal of the
arguments at summary judgment. Several brief points bear mention.
Drawing all reasonable inferences in Plaintiff’s favor, the Amended Complaint alleges, in
essence, that Defendant maintains a large database of images, “particularly copyrighted
images”1; that the CEO of the company has personally committed, at a minimum, several
instances of copyright infringement using Defendant’s website; that the CEO is aware of some
other instances of copyright infringement on the website in light of her personal participation in

1

In the context of this Complaint, this is not a bare, conclusory allegation, though it is a summary
allegation. There are sufficient specific factual allegations in the Amended Complaint to make
consideration of the allegation proper at this stage.

one section of the website; that Defendant, at the conclusion of a contest supported by outside
sponsors, takes possession and control over the contest winner’s set of images and publishes this
set on its website; that, in at least one instance, Defendant published a winning set, which
included a copyrighted work; and that Defendant’s website contains tools enabling the removal
of copyright watermarks, the clipping of images, and the display or enlargement of images in its
database, including copyrighted images.
On these allegations, the Court agrees with Magistrate Judge Bowler’s careful analysis
that Plaintiff has stated claims for direct, contributory, and induced infringement. This is so
notwithstanding the fact that whether Plaintiff has made out its theory that Defendant’s website
is “‘good for nothing else’ but infringement,” Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
Ltd., 545 U.S. 913, 932 (2005) (quoting Canda v. Michigan Malleable Iron Co., 124 F. 486, 489
(6th Cir. 1903)), as opposed to providing a service “capable of substantial noninfringing uses”
despite infringement by some users, Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
417, 442 (1984), presents a close question, even given the applicable standard at this stage of the
case.

SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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