This case includes Annie Leibovitz photographs, represented by licensing and enforcement company Trunk Archive. Allegedly, customers of comicbookmovie.com (CBM) embedded the Leibovitz photographs into the location by linking to the photographs hosted on third-party websites. As soon as CBM discovered of the hyperlinks (through the grievance), CBM disabled them.
Embedding and the Server Check
The Utah federal decide is persuaded by the Perfect 10 v. Google Ninth Circuit’s “server” take a look at, which says that 106 violations happen on the internet hosting server, not on third-party providers embedding hyperlinks to the file:
[the 9th Circuit’s decision in] Good 10 affords an easy, bright-line take a look at for figuring out whether or not pictures displayed on a web site violate the Copyright Act. Utilized right here, if the Topic Photos weren’t saved on CBM Defendants’ servers or on servers that they managed, then CBM Defendants have a doable protection to infringement….
the photographs weren’t saved on CBM Defendants’ methods. They had been mounted on a third-party server and displayed on customers’ pc screens. Because of this, the “show” of the photographs on CBM’s web site—even via the method of embedding—didn’t routinely create infringement
A reminder that the server take a look at is on enchantment within the Ninth Circuit (in two instances: Hunley v. Instagram–oral arguments had been in February–and Miller v. 4Internet). So this court docket is adopting a take a look at that the Ninth Circuit might stroll away from imminently.
512 Secure Harbor
CBM additionally argued that it certified for the 512(c) protected harbor, however this goes sideways. In any case, the purpose of the server take a look at is that CBM isn’t internet hosting the information, so Trunk Archive challenged if CBM was “storing” the information at customers’ instructions. This isn’t a tough name: the court docket says “Merely put, the protected harbor protection requires an underlying act of user-directed storage….As a result of they disclaim possession and management over the methods containing the Topic Photos, CBM Defendants can’t now depend on the protected harbor protection.”
However…if CBM customers are linking to the infringing information and CBM will not be internet hosting them, wouldn’t 512(d) apply? The court docket says that CBM didn’t argue 512(d) and subsequently the protection is waived. CBM might have argued 512(c)/512(d) within the various–if Trunk Archive was urgent down on the storage problem, it might have seemingly conceded CBM’s eligibility for 512(d). I’m confused why the protection would place its bets completely on 512(c).
Case quotation: Great Bowery v. Best Little Sites, 2023 WL 3212619 (D. Utah Could 3, 2023)