Wolk v. Kodak Imaging Network, Inc. et al

Filing 33

OPINION: Plaintiff Sheila Wolk ("Wolk" or "Plaintiff") has moved for a preliminary injunction preventing Defendant Photobucket.com, Inc. ("Photobucket" or "Defendant") from infringing on her copyrights. This motion was considered fully submitted on November 3, 2010. For the foregoing reasons, Plaintiff's motion for a preliminary injunction is denied. (Signed by Judge Robert W. Sweet on 3/17/2011) (mro)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

-----SHEILA WOLK,

------

---------x

Plaintiff, againstKODAK IMAGING NETWORK, INC., EASTMAN KODAK COMPANY, and PHOTOBUCKET.COM, INC. , Defendants.

10 Civ. 4135 (RWS) OPINION

A P PEA RAN C E S:

Pro Se SHEILA WOLK
7 West 8 Street
Apartment 2D
New York, NY 10024

At

Defendant Photobucket.com

Inc.

NORWICK & SCHAD 110 East 59 th Street
29 th
Floor New York, NY 10022 By: Kenneth P. Norwick

t

Esq.

SATTERLEE STEPHENS BURKE & BURKE LLP 230 Park Avenue New York, NY 10169 Mark Alan Lerner, Esq.

Attorneys for Defendants Kodak Imaging Network, Inc. and Eastman Kodak Company NIXON PEABODY LLP 437 Madison Avenue New York, NY 10022 By: Mark D. Robins, Esq. 100 Summer Street Boston, MA 02110 By: Gina M. McCreadie, Esq. One Embarcadero Center Suite 1800 San Francisco, CA 94111 By: Talley M. Henry, Esq.

2

Sweet, D.J.

Plaintiff Sheila Wolk ("Wolk" or "Plaintiff") has moved for a preliminary injunction preventing Defendant Photobucket.com, Inc. ("Photobucket" or "Defendant") from

infringing on her copyrights. submitted on November 3, 2010. Plaintiff's motion is denied.

This motion was considered fully For the following reasons,

I.

Summary of Facts

Plaintiff is a visual artist.

Photobucket is an

internet service provider ("ISPII) which hosts user-generated photos for storage and sharing. 8 billion photos to Photobucket. of her copyright Users have uploaded upwards of Plaintiff claims that copies

images have been uploaded to Photobucket In response, Plaintiff has provided

without her permission.

notices requesting that some of these images be taken down from Photobucket. Several these notices have complied with the ("DMCA").
l

Digital Millennium Copyright Act submitted a DMCA-compliant notice the allegedly infringing photo.

Where Plaintiff has

photobucket has taken down so has taken down

photobucket

photos where Plaintiff has sufficiently identified the alleged infringements
I

even if the notice was not DMCA-compliant.

---------------------------~"!I!:,

_ _ __

Despite the removal of these

legedly infringing photos,

Plaintiff contends that more infringing photos remain on Photobucket's site, though she has not provided DMCA-compliant notices of these allegedly infringing works to Photobucket.

II.

Legal Standards

In order to obtain a preliminary injunction, a movant must satisfy a three-part test, including: 1) irreparable harm absent injunctive relief; 2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff's favor; and 3) that the public's interest weighs in favor of granting an injunction. Metro Taxicab Bd. of Trade v. 152, 156 (2d Cir. 2010), citing Dep't of Educ., 519 F. 3d 505, 508 (2d Cir. 2008) (per curiam) i Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (internal quotations omitted) . of New York, 615 F.3d

Plaintiffs are not entitled to a presumption irreparable harm if they demonstrate a likelihood of success on the merits. 2010). Salinger v. Colting
l

607 F.3d 68, 80 82

(2d

r.

Rather,

"plaintiffs must show that, on the facts of

2

their case, the failure to issue an injunction would actually cause irreparable harm." Id. at 82.

III. Plaintiff Does Not Demonstrate a Likelihood of Success on the Merits

Through the DMCA, Congress has provided a series "safe harbors" for ISPs, including for displaying works residing on systems or networks at the direction of users. See Ellison Where an

v. Robertson, 357 F.3d 1072, 1076-77 (9th Cir. 2004).

ISP meets safe harbor eligibility requirements, it is protected from all monetary and most equitable relief. See Corbis Corp.

v. Amazon. com, Inc., 351 F. Supp. 2d 1090, 1098 99 (W.D. Wash. 2004), abrogated on other grounds by Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612 (9th Cir. 2010).

In order for Photobucket to fall within the DMCA's safe harbor protection, it must meet the following criteria: it must be a service provider as defined by the statute; must have adopted and reasonably implemented a pol (2) (1) it

for the

termination in appropriate circumstances of users who are repeat infringers; and, (3) it must accommodate and not interfere with

standard technical measures used by copyright owners to identi or protect copyrighted works. See Id. at 1099; 10 Group, Inc.

_v_.__ V_e_o_h Ne_t_w_o_r_k_s~_____ 586 F. Supp. 2d 1132, 1142-43 (N.D. Cal. ____ .,
3

2008)

i

Perfect 10, Inc. v. Google,

Inc., 2010 U.S. Dist. LEXIS

75071, *11 (C.D. Cal. Jul. 26, 2010); 17 U.S.C. §§ 512(i) &
(k) (1) (B) .

The DMCA safe harbor provision at issue here is found at 17 U.S.C.
§

512(c), and

protects service providers for

liability "'for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider. "' U.S.C.
§

Io Group, 586 F. Supp. 2d at 1146, quoting 17

512 (c) (1) .

a.

Photobucket is a Service Provider under the DMCA

A "service provider" is broadly defined under the DMCA as a "provider of online services or network access, or the operator of facilities therefor....
/I

17 U. S . C. § 512 (k) (1) (B) .

"This definition encompasses a broad variety of Internet activities." Corbis, 351 F.Supp.2d at 1100; see also In re (N.D.

Aimster Copyright Litigation, 252 F. Supp. 2d 634, 658 Ill. 2002)

("'service provider' is defined so broadly that [the

court would] have trouble imagining the existence of an online service that would not fall under the defini tion... /I). Where

courts have dealt with services similar to Photobucket, namely
4

Youtube.com, they have found those companies to be "service providers" under the statute. See Viacom Internat (S.D.N.Y. 2010)

Youtube, Inc., 718 F. Supp. 2d 514, 518

Photobucket's hosting and allowance of online sharing of photos and video at the discretion of its users qualifies it as a service provider under the DMCA.

b. Photobucket Has Adopted and Reasonably Implemented a

Policy for the Termination of Users Who Are Repeat Infringers

The DMCA requires a safe harbor service provider to demonstrate that it has: adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides or the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers. 17 U.S.C.
§

512 (i) (1) (A)

i

see Perfect 10, Inc. v. CCBill LLC,

488 F.3d 1102, 1109 (9th Cir. 2007).

Photobucket has met this criteria by adopting, informing users of, and implementing a policy addressing the termination of users who repeatedly infringe copyrights. Aff.
~

(Dana.

22.)

5

c.

Photobucket Does Not Interfere with Standard Technical Measures

"Standard technical measures" are defined as "technical measures that are used by copyright owners to identify or protect copyrighted works
ll

and which:

(a)

"have been

developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process"; (b) "are available to any person on "do not impose

reasonable and nondiscriminatory terms"; and (c)

substantial costs on service providers or substantial burdens on their systems or networks." quoting 17 U.S.C.
§

10 Group,

586 F. Supp. 2d at 1143,

512(i) (2) (A)-(C).

Photobucket contends, and Plaintiff does not dispute, that it accommodates and does not interfere with standard techni measures taken by copyright holders to protect their (Dana Aff.
~

intellectual property.

23.)

d. The Infringement Alleged Here Invokes DMCA Section 512(c) Safe Harbor Protection

As noted above, 17 U.S.C.

§

512(c) protects qualified

service providers from liability for infringement which occurs "by reason the storage at the direction of a user that

resides on a system or network controlled or operated by or for
6

the service provider."

17 U.S.C. § 512(c) (1).

This safe harbor

was not intended by Congress to be limited "to merely storing material," but was meant to encompass a broader range of services offered by internet companies. 2d at 1147.
10 Group,

586 F. Supp.

However, the safe harbor does not apply to

"material that resides on the system or network operated by or for the service provider through its own acts or decisions and not at the discretion of a user." quotations omitted). Id. (internal citations and
§

The protections offered by

512(c) extend

to where the service provider offers online tools permitting users to interact with user-submitted content. See Id. at 1146

47; Viacom, 718 F. Supp. 2d at 527 28 ("Surely the provision of such service, access, and operation of facilit s are within the

safe harbor when they flow from the material's placement on the provider's system or network: it is inconceivable that they are left exposed to be claimed as unprotected infringements") .

e. Photobucket Meets All of the Requirements for Protection under Section 512(c)

A service provider may qualify for protection under 512(c) if it: (A) (i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

§

7

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material. (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
§

(C)

17 U.S.C.

512 (c) (1) (A) - (C).

In order for ISP to be charged with notice of a claimed infringement, the notice "must be a written communication provided to the designated agent of a service provider that includes substantially the following":

(A) (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
8

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith bel f that use of the mat al in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (B) (i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substant ly with the provisions of subparagraph (A) shall not be considered under paragraph (1) (A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. (ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with I the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).
17 U.S.C.
§

512 (c) (3) (A)

(B).

The ISP must also designate an agent to rece notifications of claimed infringement on its website a

9

publicly accessible location and with the Copyright Office. U.S.C.
§

17

512 (c) (2) .

1. Plaintiff's Non-Specific Notices of Infringement Were Insufficient to Give Photobucket Actual or Apparent Knowledge of Infringement

Photobucket has taken down all allegedly infringing photos where Plaintiff has supplied DMCA-compliant notice. Plaintiff's motion relies upon her contention that her past notices also serve as DMCA-compliant notice of other present and future alleged infringements of the same copyrighted works posted at different times and at different locations. In

essence, Plaintiff contends that Photobucket is now aware that her copyrights are being infringed on its site, and it must now police its sight to uncover current infringements and prevent future infringements, without her providing DMCA-compliant notice in each instance.

Plaintiff's position places a burden on Photobucket beyond what is required under the DMCA. Pursuant to
§

512(c) (3) (A), DMCA-compliant notice must identify and reasonably locate the infringing activity in each instance. held in Viacom, As the Court

"[a]n example of such sufficient information the allegedly infringing

would be a copy or description

10

material and the so called 'uniform resource locator

l

(URL)

(i.e'

l

web site address) which allegedly contains the infringing 718 F. Supp. 2d at 529 (rejecting plaintiff/s

material."

complaint where the ISP removed only specific infringing material designated in DMCA-compliant notices and not other clips which infringed the same works) on Commerce Report 2d Sess'
l I

I

quoting House Committee
l

H.R. Rep. No. 105-551 (Part 2), 105th Cong' Plaintiff cites Viacom in
l

at 55 (July 221 1998).

urging the Court to adopt a \\common-sense

fact-based approach
I

I

not a formalistic one" in assessing Defendant s notice. Mem. at 41 quoting Viacom shown above
I
l

(Pl.

718 F. Supp. 2d at 521.)

However, as

Viacom indicates that such an approach would still

require Plaintiff to provide the specific location of the legedly infringing works in each instance for notice to be effective. See Viacom
l

718 F. Supp. 2d at 523

1

529.

The requirement that DMCA-compliant notices identify and locate specific acts of infringement undermines Plaintiff/s position, as her past notices do not identify and locate other, and future
I

infringing activity.

The Court does not accept her
l

invitation to shift the burden from her to Photobucket

as the

underlying purpose of the notice requirements is to \\place the burden of policing copyright infringement - indentifying the potentially infringing materi and adequately documenting 11

"1''

,,\'1& _ _ _ _ _ __

infringement - squarely on

owners of the copyright.

I!

UMG
1

________~~_I_n_c . ___.__ __ v V_e_o_h ___________ _ I_n_c_.1 665 F. Supp. 2d 1099 1110 (C.D. Cal. 2009) Court burden
1

quoti

CCBill l

488 F.3d at 1113.

The

CCBill similarly "decline[d] to shift policing for infringement] CCBill
l

[the] substantial

from the copyright owner Furthermore
1

to the provider.1!

488 F.3d at 1113.

17

U.S.C. § 512(m) (1) rejects any attempt to force ISPs to police their sites for copyright infringement: Nothing in this section 1 be construed to condition the applicability of subsections (a) through (d) on- (1) a service provider monitoring its service or affirmatively seeking facts indicating infringing act except to the extent consistent with a standard technical measure complying with the provis of subsection (i) ....
1

See also Viacom l it shall not

718 F. Supp. 2d at 524

("The DMCA is explicit:
l

construed to condition 'safe harbor

protection

on a service provider monitoring its service or affirmatively seeking facts indicating infringing activi ty.... II) (internal quotations and tations omitted) .

A similar argument was reje plaintiff, a

UMG.

There
1

1

the

s holder of various music recordings

provided

notice of specific infringements and indicated that it bel

other

l

non-specifi

infringement was taking place.

665 F.

12

Supp. 2d at 1109-10.

The plaintiff argued that the ISP "should

have sought out actual knowledge of other infringing videos by searching its system for all videos by the artists indentified in the (plaintiff's] notices." Id. at 1110. The court rejected

this argument, holding that an "artist's name is not 'information reasonably sufficient to permit the service provider to locate [infringing] material'" and noting that searches suggested by the plaintiff produced "false positives" which should not be taken down. rd. at 1110 & n. 13 (internal

quotations and citations omitted) .

Without receiving notices identifying and locating each instance of infringement, Photobucket did not have "actual knowledge" of the complained of infringements or "aware [ness] of facts or circumstances from which infringing activity is apparent." 17 U.S.C.
§

512 (c) (1) (A) (ii).

See UMG, 665 F. Supp.
§

2d at 1110 ("notices that 512 (c) (3) (A)

il to comply substantially with

'shall not be considered... in determining whether a

service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent'"), quoting 17 U.S.C.
F. Supp. 2d 1082
§

512 (c) (3) (B);

,

165

(C.D. Cal. 2001)

("The DMCA expressly provides

that if the copyright holder's attempted notification fails to 'comply substantially' with the elements of notification 13

described in subsection (c) (3), that noti

cation shall not be

considered when evaluating whether the service provider had actual or constructive knowledge of the infringing activity under the first prong set forth in Section 512(c) (1)"), quoting 17 U.S.C.
§

512 (c) (3) (B) (i)

i

Viacom, 718 F. Supp. 2d at 524

("The tenor of the foregoing provisions is that the phrases 'actual knowledge that the material or an activityl is infringing! and 'facts or circumstances! indicating infringing activity, describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of Wolk

prevalence of such activity in general is not enough. ") .

has failed to point to other factors sufficient to establish that Photobucket knew or should have known of the specific infringing activity.

FinallYI as noted above! it is undisputed that photobucket has promptly taken down allegedly infringing materials when notified in compliance with the DMCA, satisfying the third and final factor of 512 (c) (1) (C) .
§

512(c) (1) (A), as well as

§

2 . Photobucket Does Not Have the Right and Abili ty

to Control Infringing Activity and Does Not Receive Direct Financial Benefit from Alleged Infringing Activity

14

Turning to

§

512(c) (1) (B), Photobucket may "not ly attributable to the

receive a financial benefit infringing activity,

in a case in which [it] has the right and 17 U.S.C.
§

ability to control such activity."

512 (c) (1) (B).

Photobucket allows users to upload and share photos does not maintain the right or posted, including materials which lity to control what is copyrights. "[T]he

right and ability to control infringing activity,

'as the

concept is used in the DMCA, cannot simply mean the ability of a provider to block or remove access to materials posted on its website or stored on its system. "' 2d at 1110, quoting CCBill, 488 F.3d at 1098. Hendrickson, 165 F. Supp. 2d at 1093; 10 at 1151. the
,

s, 351 F. Supp. See also 586 F. Supp. 2d

Rather, such a right and ability to control may take prescreening content, providing extens advice to See Corbis,

users regarding content, and editing user content.

351 F. Supp. 2d at 1110, citing Perfect 10, Inc. v. Cybernet Ventures Inc., 213 F. Supp. 2d 1146, 1181-82 (C.D. Cal. 2002).
ze

Photobucket

s not engage in such activities, and the ls its ability to do so.

its website curt
10 Group,

(Dana Af f. , 3.)

In

the Court found that, where hundreds of thousands oaded to a site similar to Photobucket, no

videos had been

reasonable juror could conclude that a comprehensive review of 15

every file would be

586 F. Supp. 2d at 1153.

Plaintiff has not pointed to any feasible method by which Photobucket can prescreen its content. 1

Furthermore, Photobucket does not receive "a f benefit directly attributable to the infringing activity" Plaintiff seeks to enjoin. 1 7 U. S . C.
§

i

512 (c) (1) (B).

As the

Ninth Circuit has held, where ce provider] attracted or ret

is no evidence that "[the subscriptions because

infringement or lost subscriptions because of [its] eventual obstruction of the infringement," no reasonable jury could conclude that the service provider received a direct financial fit from providing access to II, - - - - 488 F.3d at 1117, citing infringing material. lison, 357 F.3d at 1079.

aintiff contends that Photobucket receives financial gain through its relationship with Kodak, under which it rece However, a share of sales derived from Photobucket.com. s financial gain is derived allowing all users specifically from

access to Kodak's services, not directly allowing users to print infringing mate

Plaintiff proposes that Photobucket uses video IIf ing" technology to search its website for infringing material. However, Plaintiff concedes that such is very burdensome to implement and notes Photobucket's contention that it would not be feasible to use such (Pl. Reply Mem. at 2, ci Dana Aff. ~ 50.)
1

16

3. Photobucket Has Properly Designated an Agent to Receive Notifications of Claimed Infringements

final requirement for safe harbor under

§

512(c) (2) is for Photobucket to designate an agent for DMCA
notifications, to post such agent's contact information on its website in a publicly accessible location, and to provide the Copyright Off with this information. It is undisputed that (See Dana
f.

Photobucket has complied with this requirement.
~ 16.)

f. The Limited Injunctive Relief Available under Section 512(j) Does Not Provide For Plaintiff's Requested Relief

Because Photobucket qualifies for

§

512(c)'s safe

harbor, the relief available to Plaintiff is circumscribed to that provided by
§

512(j).

Only three forms of injunctive

relief are available against Photobucket: (i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online s e on the provider's system or network. (ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider's system or network who is engaging infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified the order.
17

(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a parti ar online location if such reli is the least burdensome to the service provider among the forms of relief comparably effect for that purpose.
l

17 U.S.C.

§

512(j) (1) (A)

Plaintiff appears to seek reli

under (i) and (iii).

An

unction under (i)

I

which prevents Photobucket

from "providing access to infringing material residing at a particular onl site on the provider1s system or network,"

essentially requires Photobucket to block access to infringing material when given proper notice. see Nimmer on
, §

17 U.S.C.

§

512(j) (1) (A) (i) i

12B.11 (2010), citing Report of the
I

Committee on the Judiciary, H.R. Rep. No. 105-551 (Part 2) 105th Cong., 2d Sess., at 62 (July 22, 1998). Photobucket is

It is undisputed

ready removing allegedly infringing works when

given DMCA-compliant notice so that there is no need for an injunction requiring it to do the same.

The third form of

unction under

§

512 (j) (1) (A)

is a

broader catch-all provision, but it requires that the injunction point to "a particular online location H and that the rel "least burdensome to the service provider H among other be

18

fective forms of relief.

Plaintiff's argument is that she infringements of for infringing

need not provide specific online locations her copyrights. act Rather, Photobucket is to

ty itself, a task which both parties acknowledge to be The injunctive relief Plaintiff
§

burdensome. comport to

does not

512 (j) (1) (A) (iii) .

IV. Plaintiff Fails to Satisfy the Other Criteria for a
Preliminary Injunction

Apart from being unable to establish a I success on the merits, aintiff does not demonstrate

ihood of

harm, that the balance of hardships falls , or that public policy supports her sought-after

her ief.

a.

Plaintiff Fails to Demonstrate Irreparable Harm

Plaintiff relies on a

ion of irreparable harm

for copyright plaintiffs, citing Johnson Controls, Inc. v.
~~~~~~~~~~~~------

Phoenix Control

Inc., 886 F.2d 1173, 1174 (9th Cir. 1989) Salinger, 607

However, F.3d at 75.

s presumption has been abrogated. This court has found the

lowing:

Irreparable harm is the "single most important prerequisite" for a preliminary unction to issue. ~~~~L-~~~~~~~~~~~~~~~~~~I 559 F.3d Cir. (citation omitted). The must demonstrate that, without a preliminary 19

injunction, he will suf an injury that is "neither remote nor speculative[ but actual and imminent, and one that cannot be remedied if a court waits until the end of tri to resolve the harm. II Id. (citation omitted). IIWhere there is an adequate remedy at law[ such as an award of money damages, injunctions are unavailable except in extraordinary circumstances." Id. (citation omitted). Thus [ the "relevant harm is the harm that (a) occurs to the parties' legal interests and (b) cannot remedied after a final adjudication, whether by damages or a rmanent injunction." Salinger[ 607 F.3d at 81. A court must not presume that a plaintiff will suffer irreparable harm; it must "actually consider the injury the plaintiff will suffer if he or she loses on the preliminary unction but timately prevails on the merits." Id. at 80. Morgan Stanley & Co. v. Seghers[ 2010 U.S. Dist. LEXIS 107686, at *15-16 (S.D.N.Y. Oct. 8[ 2010). aintiff has

not pointed to any damages which cannot be remedied after a final adjudication.

Furthermore, Plaintiff[s delay in bringing her motion for a harm. liminary injunction belies her claim of irreparable inger, 607 F.3d at 75-76. "An unreasonable delay the

suggests that the pIa

iff may have acquiesced

infringing activity or that any harm suffered is not so severe as to be 'irreparable.'" F.3d 33[ 34 (2d Cir. 1996) Feiner v. Turner Entertainment Co., 98 (18 month delay in bringing copyright

infringement suit rebutted presumption of irreparable harm), abrogated on other grounds by ____~~_, 607 F.3d at 75. According to Plaintiff, many of the 20 leged infringements have

been on Photobucket's s Dep ., p. 325.)

e since 2008.

(Pl. Mem. at 3; Wolk

h. The Balance of Hardships Does Not Weigh in Plaintiff's Favor

Where a plaintiff has failed to demonst likelihood \\sufficient

a

success on the merits buts has demonstrated serious questions going to the merits," the Court "balance of hardship tip[s] Salinger, 607 F.3d at 79

should issue an injunction where decidedly in plaintiff's favor."

80 (citations omitted). safe harbor

Due to Photobucket's eligibility for

ions under the DMCA, Plaintiff has not raised aintiff

sufficiently serious questions going to the merits.

also fails to show that the balance of hardships tips in her favor.

Plaintiff contends that f will require her to find infringing act s

to grant her

f

ty on Photobucket's She

and report it to them through DMCA-compliant notices.

contends that this will be difficult and labor intensive. However, the purpose of her motion is to shift that same burden to Photobucket, without photobucket having the benefit of knowing whether Plaintiff has authorized any of her works to be displayed on its s While, as Plaintiff points out,
21

Photobucket is the larger enterprise, the burden it would bear in having to continually search its site for infringing activity is heavy. Furthermore, saddling Photobucket with t s

responsibility is out of step with the DMCA, which, as noted above, places the burden of uncovering infringing activity on copyright holders.

c. The Public Interest Would Be Disserved By Issuing the Injunction

Finally, the Court must consider whether the "public's interest weighs in favor of granting an injunction." Taxicab, 615 F.3d at 156, citing Winter, 555 U.S. 7. Metro

As noted above, the DMCA provides a scheme under which copyright holders notify ISPs of alleged infringing mat their sites, and the ISPs act to remove such material. al on To the

extent that Plaintiff has availed herself of this scheme, it has worked. However, Plaintiff seeks to shift the burden of finding Such a shift would render ISPs sites for all infringing Plaintiff acknowledges that it her

infringing material to the ISP. responsible for searching the materials, a significant task.

would be expensive for Photobucket to search

intellectual property, much less all other copyrighted works. (Pl. Reply Mem. at 2.) Placing such a debilitating burden on 22

ISPs would defy the purpose of the DMCA, which was "to facilitate the growth of electronic commerce, not squelch it."
10 Group,

586 F. Supp. 2d at 1154, citing S. Rep. No. 105-190, (May 11, 1998).

105th Cong., 2d Sess., at 1-2

Conclusion

For the foregoing reasons, Plaintiff's motion for a preliminary injunction is denied.

It is so ordered.

New York, NY March

I!'

2011

ROBERT W. SWEET U.S.D.J.

23