ExtortionLetterInfo Forums
ELI Forums => Getty Images Letter Forum => Topic started by: Engel Nyst on August 02, 2016, 09:40:17 PM
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A recent decision that may be surprising for older assumptions: the website being sued allows user uploads, doesn't need a DMCA agent, and yet wins on all direct infringement, contributory infringement, vicarious infringement:
http://business.cch.com/ipld/BWPMediaUSAPolyvore20160715.pdf
An excellent analysis is here:
http://blog.ericgoldman.org/archives/2016/07/sideloading-service-defeats-copyright-infringement-claims-bwp-v-polyvore.htm
I note BWP's behavior: uninterested much in doing the necessary during the case. (I don't know how to understand that)
The most important point, it seems to me, is that given the evidence in the case, Polyvore didn't need DMCA safe harbor to be shielded from copyright claims, even though the images (79) were displayed on its site. Users uploaded them, using features of the site, without any "volitional conduct" from Polyvore. That was sufficient in the end for a finding of no direct infringement as a matter of law, under Cablevision.
In addition, the tool was capable of "clipping" copyrighted and infringing images just as well as non-infringing images, and Sony-Betamax applied to shield it from contributory liability.
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When I said above that the decision is somewhat surprising for older assumptions, I was referring to the following assumption: that a DMCA registered agent is necessary for a website owner to not be held liable for infringement made on their website by a user.
Notice how the court discussed that in detail, and held that a DMCA process can shield a site owner in circumstances where they would be found liable. But if they're not liable in the first place, because of lack of volitional conduct, then DMCA process is irrelevant.