Sinclair v. Ziff Davis, LLC

Filing 41

OPINION & ORDER re: 32 MOTION for Reconsideration re; 31 Memorandum & Opinion, filed by Stephanie Sinclair. For the foregoing reasons, Plaintiff's motion for reconsideration is GRANTED. (ECF No. 32.) Defendants' motion to dismiss Plaintiff's Second Amended Complaint is DENIED as to Mashable, but GRANTED as to Ziff Davis. (ECF No. 18.) The Clerk of Court is respectfully directed to reopen this case. SO ORDERED. (Signed by Judge Kimba M. Wood on 6/24/2020) (va)

Case 1:18-cv-00790-KMW Document 41 Filed 06/24/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: __________________
DATE FILED: June 24, 2020

STEPHANIE SINCLAIR,
Plaintiff,
18-CV-790 (KMW)

-against-

OPINION & ORDER

ZIFF DAVIS, LLC, and MASHABLE, INC.,
Defendants.
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KIMBA M. WOOD, United States District Judge:
Plaintiff Stephanie Sinclair moves for reconsideration, under Local Civil Rule 6.3 and
Rule 59 of the Federal Rules of Civil Procedure, of this Court’s Opinion & Order (the
“Opinion”) dismissing her Second Amended Complaint against Defendants Ziff Davis, LLC
(“Ziff Davis”) and Mashable, Inc. (“Mashable”). (ECF Nos. 31, 32.) Familiarity with the
Opinion is assumed. Plaintiff’s motion for reconsideration is GRANTED. Revising its previous
holding, the Court holds that the pleadings contain insufficient evidence to find that Instagram
granted Mashable a sublicense to embed Plaintiff’s Photograph on its website. The Court
adheres to is prior holdings in all other respects. Therefore, Defendants’ motion to dismiss the
Second Amended Complaint is GRANTED in part and DENIED in part.

LEGAL STANDARD
“A motion for reconsideration should be granted only when the [movant] identifies ‘an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.’” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (quoting Virgin Atl. Airways, Ltd. v. Nat’l

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Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). This standard is “strict,” and
“reconsideration will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). “It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting
the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second
bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998).

DISCUSSION
The Court adheres to its previous holding that, by agreeing to Instagram’s Terms of Use,
Plaintiff authorized Instagram to grant API users, such as Mashable, a sublicense to embed her
public Instagram content, as set forth in Instagram’s Platform Policy. 1 (Opinion at 4.)
The Court does, however, revise the Opinion by finding that the pleadings contain
insufficient evidence that Instagram exercised its right to grant a sublicense to Mashable. As
evidence of its purported sublicense, Mashable presented Instagram’s Platform Policy, which
states that Instagram “provide[s] the Instagram APIs to help broadcasters and publishers discover
content, get digital rights to media, and share media using web embeds.” (Platform Policy,
Preamble.) The Court previously concluded that this term of the Platform Policy granted
Mashable a sublicense to use the API to embed the Photograph in its website.
In reaching this conclusion, the Court did not give full force to the requirement that a
license must convey the licensor’s “explicit consent” to use a copyrighted work. Ward v. Nat’l
Geographic Soc., 208 F. Supp. 2d 429, 442–43 (S.D.N.Y. 2002) (Kaplan, J.) (quoting Gardner v.

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Plaintiff’s arguments to the contrary—which include that the Court relied on the wrong version of
Instagram’s policies, that Plaintiff never agreed to Instagram’s Terms of Use, and that Plaintiff’s agreement with
Instagram was unsupported by consideration—are without merit or procedurally improper because they were not
previously raised.

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Nike, Inc., 279 F.3d 774, 781 (9th Cir. 2002)). The Platform Policy’s statement that the API is
intended to “help broadcasters and publishers discover content, get digital rights to media, and
share media using web embeds” could be interpreted to grant API users the right to use the API
to embed the public content of other Instagram users. But, that is not the only interpretation to
which that term is susceptible. See McGucken v. Newsweek LLC, 19-CV-9617, 2020 WL
2836427, at *4–5 (S.D.N.Y. June 1, 2020) (Failla, J.). Therefore, “[a]lthough courts may find a
license on a motion to dismiss where the terms of the governing contracts are clear,” the
Platform Policy’s terms are insufficiently clear to warrant dismissal of Plaintiff’s claims at this
stage of litigation. Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295, 303 (S.D.N.Y. 2011)
(Pauley, J.) (citation and quotation marks omitted).
The Court did not “overlook” the Ward issue, as the parties did not raise it with any
clarity in their original briefs. Nonetheless, in light of the persuasive authority of McGucken,
and in order to correct clear error, the Court holds that Plaintiff’s copyright claim against
Mashable cannot be dismissed on the basis of Mashable’s sublicense defense on the record
presently before the Court.
Finally, the Court adheres to its prior holding that Plaintiff failed to state a claim of
copyright infringement against Ziff Davis. As the Court explained in the Opinion, pleading that
Ziff Davis controls Mashable, the alleged infringer, is insufficient to state a claim of copyright
infringement against Ziff Davis. Instead, Plaintiff would have needed to plead “substantial
continuing involvement” by Ziff Davis in Mashable’s alleged infringement. (Opinion at 8.) She
did not do so.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration is GRANTED. (ECF
No. 32.) Defendants’ motion to dismiss Plaintiff’s Second Amended Complaint is DENIED as
to Mashable, but GRANTED as to Ziff Davis. (ECF No. 18.) The Clerk of Court is respectfully
directed to reopen this case.

SO ORDERED.
Dated: New York, New York
June 24, 2020

/s/ Kimba M. Wood
KIMBA M. WOOD
United States District Judge

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