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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT NEW YORK- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - XAGENCE FRANCE PRESSE, :
Plaintiff, :- against - : 10 Civ. 2730 (AJN)(MHD)
:DANIEL MOREL, :
Defendant and :Counterclaim-Plaintiff. :
:- against - :
:AGENCE FRANCE PRESSE, :
Counterclaim-Defendant, ::
- and - ::
GETTY IMAGES (US), INC.; THE :WASHINGTON POST COMPANY and AFP :and GETTY Licensees Does 1-et al., :
Third-Party Defendants. :- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
COUNTERCLAIM DEFENDANTS MEMORANDUM IN OPPOSITION TO
MORELS MOTION FOR SUMMARY JUDGMENT
Joshua J. KaufmanMeaghan H. KentElissa B. ReeseVENABLE LLP575 7th Street, N.W.Washington, DC 20004-1601Telephone: (202) 344-4000Fax: (202) 344-8300
Counsel for Plaintiff-Counterclaim
Defendant Agence France Presse
James RosenfeldDeborah AdlerSamuel M. BayardDAVIS WRIGHT TREMAINE LLP1633 Broadway 27th floorNew York, New York 10019Telephone: (212) 489-8230
Attorneys for Counterclaim Defendants Getty
Images (US), Inc. and the Washington Post
Company
May 29, 2012
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TABLE OF CONTENTS
PRELIMINARY STATEMENT ...................................................................................................... 1ARGUMENT .................................................................................................................................... 6
I. Defendants Are Not Liable for Direct Copyright Infringement ..................................... 6A. AFP Is Not Liable for Direct Infringement ......................................................... 7
1. AFP Submits that the Twitter Terms of Service Provide aCopyright License ................................................................................... 7
2. AFP Does Not Dispute Morels Current Standing ............................... 10B. Getty Images Is Not Liable for Direct Infringement ........................................ 11
1.
The Record Establishes Getty Images Narrow and Passive Rolein the Distribution of AFP Content ....................................................... 112. The DMCA 512(c) Safe Harbor Applies, Precluding Summary
Judgment for Morel as to His Copyright Infringement ClaimsAgainst Getty Images ............................................................................ 20a. Getty Images is a Service Provider and AFP is a User of
its Service .................................................................................. 20b. Getty Images Fits Squarely Within the Safe Harbor as
Recently Clarified by the Second Circuit in Viacom v.
YouTube .................................................................................... 223. Getty Images Did Not Act With Sufficient Volition to be Held
Liable for Direct Infringement .............................................................. 25C. The Plaintiffs Allegations That the Post Did More Than Display Certain
Photos Are Erroneous ....................................................................................... 25II. The Defendants Did Not Act Willfully ......................................................................... 27
A. AFP Did Not Act Willfully ............................................................................... 28B. Getty Images Acted Innocently ........................................................................ 30C. The Post Acted Innocently ................................................................................ 32
III. Mr. Morels Claim for Indirect Liability Must Fail ...................................................... 34A. Morels Claim of Contributory Copyright Infringement Must Fail.................. 34
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B. Morels Claim of Vicarious Copyright Infringement Must Fail ....................... 35IV. Morel Is Entitled to Only a Single Statutory Damages Award Per Work .................... 37V. Mr. Morels Copyright Management Information Claims Must Fail ........................... 39
A. Defendants Did Not Provide False CMI Pursuant to 1202(a) .......................... 391. AFP Did Not Provide False CMI With Any Mal-Intent ....................... 392. Getty Images Did Not Provide False CMI With The Requisite
Intent ..................................................................................................... 42B. There Was No Removal of CMI Pursuant to 1202(b) ................................... 43C. DMCA Statutory Damages Are Limited to Each Violation and Not
Each Download ................................................................................................. 44CONCLUSION ............................................................................................................................... 45
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TABLE OF AUTHORITIES
Page(s)
CASES
Adobe Systems Inc. v. Canus Prods., Inc.,173 F. Supp. 2d 1044 (C.D. Cal. 2001) ...................................................................................37
Arista Records LLC v. Lime Group LLC,784 F. Supp. 2d 313 (S.D.N.Y. 2011)......................................................................................39
Bouchat v. Champion Prods., Inc.,327 F. Supp. 2d 537 (D. Md. 2003),affd sub nom. Bouchat v. Bon-Ton Dept Stores, Inc., 506 F.3d 315 (4th Cir. 2007) ............39
Bourne v. Walt Disney Co.,68 F.3d 621 (2d Cir. 1995).....................................................................................................7, 9
Bryant v. Media Right Productions, Inc.,603 F.3d 135 (2d Cir. 2010), cert. denied, 131 S. Ct. 656 (2010) ...........................................29
Capitol Records, Inc. v. MP3tunes, LLC,821 F. Supp. 2d 627 (S.D.N.Y. 2011)......................................................................................22
Cartoon Network LP, LLLP v. CSC Holdings, Inc.,536 F.3d 121 (2d Cir. 2008)...............................................................................................25, 26
Castle Rock Entmt v. Carol Publg Grp., Inc.,955 F. Supp. 260 (S.D.N.Y. 1997), affd, 150 F.3d 132 (2d Cir. 1998) ..................................29
Ellison v. Robertson,357 F.3d 1072 (9th Cir. 2004) ..................................................................................................38
Encyclopedia Brown Prods. Ltd. v. Home Box Office, Inc.,25 F. Supp. 2d 395 (S.D.N.Y. 1998)........................................................................................32
Evans-Gadsden v. Bernstein Litowitz Berger & Grossman, LLP,491 F. Supp. 2d 386 (S.D.N.Y. 2007)......................................................................................37
Fallaci v. New Gazette Literary Corp.,
568 F. Supp. 1172 (S.D.N.Y. 1983).........................................................................................28
Faulkner v. Natl Geographic Socy,211 F. Supp. 2d 450 (S.D.N.Y. 2002), affd, 409 F.3d 26 (2d Cir. 2005) ...............................35
Fitzgerald Publg Co. v. Baylor Publg Co.,807 F.2d 1110 (2d Cir. 1986)...................................................................................................28
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Gershwin Publg Corp. v. Columbia Artists Mgmt., Inc.,443 F.2d 1159 (2d Cir. 1971)...................................................................................................35
Hamil American Inc. v. GFI,193 F.3d 92 (2d Cir. 1999).......................................................................................................28
Io Group, Inc. v. Veoh Networks, Inc.,586 F. Supp. 2d 1132 (N.D. Cal. 2008) ...................................................................................22
Island Software and Computer Service, Inc. v. Microsoft Corp.,413 F.3d 257 (2d Cir. 2005).....................................................................................................28
Lipton v. Nature Co.,71 F.3d 464 (2d Cir. 1995).......................................................................................................32
Livnat v. Lavi,No. 96 Civ 4967, 1998 WL 43221 (S.D.N.Y. Feb. 2, 1998) ...................................................35
Marinelli v. Chao,222 F. Supp. 2d 402 (S.D.N.Y. 2002)......................................................................................27
Marvullo v. Gruner & Jahr,105 F. Supp. 2d 225 (S.D.N.Y. 2000)......................................................................................36
Matthew Bender & Co. v. West Publg Co.,158 F.3d 693 (2d Cir. 1998).....................................................................................................35
McClatchey v. Associated Press,No. 3:05-cv-145, 2007 WL 1630261 (W.D. Pa. June 4, 2007) ...................................39, 45, 46
Metro-Goldwyn-Mayer Studios Inc. v. Grokster,Ltd.,545 U.S. 913 (2005) .................................................................................................................35
N.A.S. Import Corp. v. Chenson Enters., Inc.,968 F.2d 250 (2d Cir. 1992).....................................................................................................32
People v. Harris,No. 2011-N.Y.-080152, -- N.Y.S.2d --, 2012 WL 1381238(Crim. Ct. N.Y. County Apr. 20, 2012) .....................................................................................9
Perfect 10, Inc. v. CCBill LLC,488 F.3d 1102 (9th Cir. 2007) ..................................................................................................22
Rojo v. Deutsche Bank,No. 10-2999-cv, 2012 WL 1813670 (2d Cir. May 21, 2012) ..................................................36
Rosen v. Hosting Services, Inc.,771 F. Supp. 2d 1219 (C.D. Cal. 2010) ...................................................................................22
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Stockwire Research Group, Inc. v. Lebed,577 F. Supp. 2d 1262 (S.D. Fla. 2008) ....................................................................................46
Syracuse Broad. Corp. v. Newhouse,236 F.2d 522 (2d Cir.1956)......................................................................................................37
UMG Recordings, Inc. v. Veoh Networks Inc.,620 F. Supp. 2d 1081 (C.D. Cal. 2008) ...................................................................................22
Viacom Intl, Inc. v. YouTube, Inc. (Viacom I),718 F. Supp. 2d 514, affd, 676 F.3d 19 (2d Cir. 2012)...........................................................22
Viacom Intl v. YouTube Inc. (Viacom II),676 F.3d 19 (2d Cir. 2012)...............................................................................................passim
Wolk v. Kodak Imaging Network, Inc.,No. 10 Civ. 4135, -- F.Supp.2d --, 2012 WL 11270 (S.D.N.Y. Jan. 3, 2012) .........................25
STATUTES
17 U.S.C. 106(5) .........................................................................................................................11
17 U.S.C. 107 ..............................................................................................................................27
17 U.S.C. 504(c)(1) .....................................................................................................................38
17 U.S.C. 512 ......................................................................................................................passim
17 U.S.C. 1202 ......................................................................................................................12, 45
17 U.S.C. 1202(a) .............................................................................................................5, 40, 44
17 U.S.C. 1202(b) ...........................................................................................................40, 43, 44
17 U.S.C. 1203 ............................................................................................................................45
OTHER AUTHORITIES
Fed. R. Civ. P. 8 .............................................................................................................................36
Fed. R. Civ. P. 56 .......................................................................................................................2, 36
Fed. R. Civ. P. 56(c) ....................................................................................................................1, 2
Local Rule 56.1 ......................................................................................................................1, 2, 34
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (3d ed. 2004) ............37
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Melville B. Nimmer & David Nimmer,Nimmer on Copyright(2012) ...................................28, 35
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Counterclaim Defendants Agence France Presse (AFP), Getty Images (US), Inc. (Getty
Images) and The Washington Post Company (the Post) (collectively Defendants) submit this
memorandum of law in opposition to Counterclaim Plaintiff Daniel Morels (Morel) Motion for
Summary Judgment (the Motion). Defendants oppose Morels Motion on the grounds
articulated below, and further submit that summary judgment should in fact be granted in their
favor for the reasons set forth in their own summary judgment papers.1
PRELIMINARY STATEMENT
In his Motion and supporting papers, Morel seeks to paint Defendants as internet
pira[tes] who stole images of the 2010 Haiti earthquake he had posted on Twitter and distributed
them in willful disregard of his intellectual property rights. (Morel Brief, p. 5). To support this
characterization, Morel offers a voluminous, 177-page Rule 56.1 Statement (Morel 56.1) of
supposedly undisputed material facts. However, even a casual review of the Morel 56.1
Statement reveals it as a procedurally improper and substantively flawed document that is rife
with inaccuracies, unsupported factual statements and improper legal argument.2 Prior to the
2010 Amendments to Rule 56(c)(2), Defendants would have filed a motion to strike these
paragraphs. In accordance with the advisory committee notes, Defendants note their objections to
1 Cognizant of the voluminous nature of the parties cross-motions for summary judgment, Defendants make an effortin this Opposition to refer back to the memorandum of law in support of their Joint Motion for Summary Judgment(Joint Brief) (Dkt. #144) and Rule 56.1 Statement (Joint 56.1) (Dkt. #129) rather than repeating those materialsherein.
2 Morels 56.1 violates Local Rule 56.1(a) and (d)s basic requirements, including Local Rule 56.1(d)s requirementthat each statement must be followed by citation to evidence which would be admissible, set forth as required by
Fed. R. Civ. P. 56(c). As Defendants Joint 56.1 Counter-Statement (Joint 56.1 Counter-Statement) details,Morels 56.1 repeatedly fails to cite evidence that supports the claim, fails to cite admissible evidence, fails to cite thecorrect evidence, cites to evidence that has not been made of record, cites evidence that is immaterial to MorelsMotion and/or includes improper legal argument or conclusions. Defendants have identified the followingparagraphs that fail to comply with Local Rule 56.1: 4, 7, 9, 11-16, 18, 20, 21(vii), 21(xii), 25, 32, 33, 35, 45, 59, 61,62, 64-66, 77, 80, 82, 83, 85-92, 94-96, 109, 111, 113-116, 118, 121, 125-129, 132, 133, 135, 140-142, 144, 147-152,154-158, 163, 165-171, 173-175, 179, 182, 183, 185, 186, 188, 190, 201-204, 206, 207, 209, 212-215, 219-224, 229,230, 234-236, 238-240, 242-244, 247-250, 252, 260, 263-267, 271, 275-277, 282, 285, 286, 288, 294, 295, 298, 303-306, 308-316, 319, 320, 322, 323, 326, 327, 330, 331, 334, 336, 340-342, and 345.
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Mr. Morels proffered evidence in their response to Mr. Morels Rule 56.1 Statement, rather than
filing a separate motion. Pursuant to the Advisory Committee Notes to the 2010 Amendments to
Federal Rule 56(c)(2), Defendants objections to these portions of the Morel 56.1 place the
burden on Morel to establish the admissibility of his supposed supporting evidence. (See Fed. R.
Civ. P. 56 Advisory Committee Note to 2010 Amendments).
After weeding out Morels inaccurate and unsupported factual statements, the evidence
in this case tells a very different story. Indeed, there is no genuine dispute that:
Haiti suffered a catastrophic 7.0 earthquake on the afternoon of January 12, 2010.
In the immediate aftermath of the earthquake, Morel took photographs of the
devastation in Port-au-Prince and posted them to Twitter via TwitPic on the evening of
January 12.
Shortly after Morels posting of his photos to Twitter, non-party Lisandro Suero(Suero) copied several of those photos and reposted them on his own TwitPic page.
Later that evening, AFP downloaded the Photos at Issue3 from Sueros TwitPic page not Morels TwitPic page believing Suero to be a citizen journalist photographer
who posted the photos to alert the world to the tragedy unfolding in Haiti with the
intent that they be shared, and understanding the Twitter Terms of Service to have
granted it a license to re-broadcast the photos.
Starting late in the evening of January 12 and continuing into January 13, AFPdistributed the Photos at Issue with a credit to Suero, who it believed to be the
3 The term Photos at Issue is defined in paragraph of 130 of Defendants Joint 56.1 Statement and refers to theeight photographs over which Mr. Morel claims copyright ownership that Vincent Amalvy of AFP downloaded fromMr. Sueros TwitPic account on January 12, 2010.
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photographer on its image database and through its wire to its subscribers and
distribution partners, including to the back-end systems of its distributor Getty Images.
Upon receiving the Photos at Issue, Getty Images back-end systems automaticallyprocessed the Photos at Issue and pushed them out over Getty Images FTP feed to its
editorial feed subscribers. Getty Images also posted the Photos at Issue on its website
after byline information was formatted without altering the photographer credit so
that the Photos at Issue could publish to the website.
On January 13, 2010, upon learning that Morel, not Suero, was the photographer, AFPimmediately corrected the credit to Morel on its own system and sent new Morel-
credited versions of the Photos at Issue over its wire to its subscribers and distribution
partners, including to the back-end systems of Getty Images, which automatically
processed and distributed those image over its FTP feed and onto its website in the
same manner as the original set of Photos at Issue.
Upon learning, on January 13, that Morel claimed that Defendants did not havepermission to distribute the Images at Issue, AFP and Getty Images each took prompt,
good faith and reasonable steps to remove the photos from their systems and notified
their customers that the photos had to be removed. Getty Images, upon learning of
additional Suero-credited images that remained on its system on February 2, again
took prompt, good faith and reasonable steps to remove the photos from their systems
and subsequently notified their customers that the photos had to be removed.
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The Post is a Getty Images subscriber, obtained the Photos at Issue through GettyImages FTP feed, and used certain of those photos in good faith, believing it was
authorized to do so, and without knowledge of any copyright issue.4
When the Post was alerted in June 2010 to potential copyright issues regarding certainof the Photos at Issue, it promptly attempted to remove them, and it did so again in
April 2011 when it was advised that the photos remained on its website.
These undisputed facts not only preclude the Court from granting Morels motion for summary
judgment on any of his claims or Defendants affirmative defenses, they also entitle Defendants to
dismissal of Morels claims.
Morels Motion and supporting papers also fail to provide sufficient legal authority
supporting his request for summary judgment on his claims and Defendants defenses. His
motion papers repeatedly ignore or misunderstand the governing legal standards, and even where
he identifies the correct governing law, he misapplies it to the factual record in this case.
For these reasons, and the reasons set forth in Defendants Joint Brief, the Court should
deny Morels Motion (and grant the corresponding portions of Defendants own summary
judgment motion) on a number of issues at this stage:
First,as to Morels claims for direct copyright infringement, (a)AFP submits that it is
not liable because Morel granted a license to third parties to rebroadcast the Photos at issue, based
on the Twitter Terms of Service; (b) Getty Images submits that the safe harbor set forth in Digital
Millennium Copyright Act (DMCA) 512(c) shields it from copyright liability and that it
lacked the requisite volition to be held liable for direct infringement, based on its minor and
4 Morel erroneously sued The Washington Post Company, the parent company of WP Company LLC d/b/a/ TheWashington Post. WP Company LLC is the publisher of The Washington Post newspaper and thewww.washingtonpost.com website. The Washington Post Company has no role in the publishing decisions oroperations of the Post. (Joint 56.1 63-64).
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passive role in the distribution of the Photos at Issue; and (c) while the Postconcedes that it
publicly displayed certain of the photos, having licensed them from Getty Images and therefore
fully believing that its use was authorized, it submits that it did not download any of the other
photos as Plaintiff belatedly suggests.
Second, the Court should also reject Morels claims for secondary copyright
infringement. The record before the Court contains no evidence sufficient to create a genuine
issue of material fact suggesting that AFP or Getty Images (a) induced, caused or contributed to
infringing conduct by their customers with sufficient knowledge of that conduct to be held
contributorily liable; or (b) directly profited from others infringing activity in circumstances
where they had the ability to control such activity, so as to be held vicariously liable. Morel
asserts for thefirst time in his Motion that AFP is vicariously liable; as discussed below, having
failed to make this claim in his counterclaim, he cannot now move for judgment as to this
unasserted claim.
Third, to the extent any of the three Defendants were held liable for direct or indirect
copyright infringement, there are strict limitations on the damages Morel is entitled to recover.
The record demonstrates conclusively that any infringement was not willful, and indeed that
Getty Images and the Post acted innocently. Furthermore, Morel is entitled to only one statutory
damages awardper infringing work, not multiple awards as he seeks.
Finally, Morels claim forDMCA liability fails in the face of clear evidence in the record
establishing beyond any genuine issue that Defendants did not provide false copyright
management information or remove copyright management information with the knowledge or
intent required to be held liable under DMCA 1202(a) or (b). And even if the Court were to
find Defendants liable under the DMCA, Morels damages are limited to one award per violative
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act (i.e. the distribution of a photo, no matter how many times), not once per license as Morel
suggests. There is no legal basis for the windfall he seeks.
ARGUMENT
I. Defendants Are Not Liable for Direct Copyright InfringementFor purposes of this motion, the Defendants do not dispute that Morel owns a copyright in
the eight Photos at Issue and do not dispute that he has registered the copyright in the Photos at
Issue. Nor do the Defendants dispute for purposes of this motion that they copied, distributed and
displayed certain of the Photos at Issue. Specifically, as articulated in their Joint Brief, AFP and
Getty Images copied, distributed and displayed the eight Photos at Issue (Joint 56.1 129-130,
153) and the Post displayed a subset of those photos (Joint 56.1 234). However, Morel has not
established and cannot show that any of the Defendants are liable for direct copyright
infringement. Indeed, the record in this case shows that all of the Defendants have complete
defenses to Morels direct copyright infringement claims:
AFP asserts that it, Getty Images, and its customers have a complete defense of license by
virtue of the Twitter terms of service.
Getty Images asserts that it is protected by the safe harbor of the Digital Millennium
Copyright Act and that it did not act volitionally.
If Morel is able to overcome the license defense asserted by AFP, the Postdoes not
dispute direct-infringement liability for its display of four of the photographs, although it
expressly preserves all other defenses. However, Morels untimely assertion that the Post also
downloaded other Photos at Issue without displaying them (the Third Amended Counterclaim
contains no such allegation), is wrong as a factual matter because the downloading was done by a
separate company not sued here. It is also wrong as a legal matter because a news organizations
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downloading of images from a licensor, for the mere purpose of reviewing them to consider
whether or not to display them to the public, is self-evidently a protected fair use.
A. AFP Is Not Liable for Direct Infringement1. AFP Submits that the Twitter Terms of Service Provide a Copyright
License
As articulated in detail in Defendants Motion, AFP moves for summary judgment against
Morels claims of Copyright Infringement based on the complete defense of license. By
registering for a Twitter account and posting his photos via TwitPic, Morel became subject to the
Twitter Terms of Service that granted a license to third parties, including the Defendants and their
subscribers, to rebroadcast his photos. (Joint 56.1 84, 85). This license is a complete defense
to a claim of copyright infringement. Bourne v. Walt Disney Co., 68 F.3d 621, 63132 (2d Cir.
1995).
AFP contends that though Morel maintained ownership of his copyright, he granted a
license pursuant to the Twitter Terms of Service. AFP is well versed in copyright and agrees that
one does not inherently lose copyright by posting copyrighted material online. AFP takes no such
position and does not argue that Morel has surrendered his copyright. As Morel points out, that is
axiomatic to Defendants business. Though AFP agrees that posting online itself does not put a
work in the public domain or grant a license, when one posts to a third party service or website,
the terms of service for that site control and may well do those things. Every third party site has a
different set of terms of service and by using that proprietary service, the user agrees to be bound
by those terms, just as Morel did here. (See Joint 56.1 81-83). Some terms of service provide
creative commons licenses, some provide license with attribution, some provide for no license.
Morel cannot post online to a site that provides a license to third parties to use and re-broadcast
posted content and at the same time claim that the Defendants willfully infringed his copyright.
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Morel had the option of sending his photos to Corbis but instead chose to post them to
Twitter. Morel states that he thought he could do better licensing the photos himself rather than
sending them to his agent, Corbis, and admits this was nave. (Morel 56.1 24). This was nave
not only because Corbis has the means and the wherewithal to properly market and license the
photos, but also because Morel was in a location of devastation where he admits that he had very
limited internet access and quite simply was unavailable to negotiate to license his photos. (See
Joint 56.1 at 73-74). This is evidenced by the numerous news outlets who attempted to contact
Morel, and to whom he never responded. (Seeinter alia Morel 56.1 33, 41-44, 46-50).
Morel chose Twitter and he is bound by that choice. Even if Morel wanted to go it alone
without Corbis, he, and everyone else, has a choice when posting online; Morel could have posted
his photos to a variety of places, including a private website or any other site that does not have
the same terms of service as Twitter. Twitter was an excellent venue for spreading news and
images about the tragic earthquake, and is regularly used successfully to share information on a
wide scale. But it is not the venue for licensing proprietary materials, which is clear from its use,
is explained in its terms of service, and is well understood by users. (Seeinter alia Joint 56.1
85-94). Morel did not have to post to Twitter/TwitPic but he chose to and he accepted and is
bound by Twitters Terms of Service that grant a license to third parties. (See Joint 56.1 75-
91).
Morels Motion acknowledges that the Twitter Terms of Service apply to him. However,
he argues that the Twitter license is limited to Twitter and its partners and that Twitter users can
only share and display Morels photos on Twitter. (Morel Brief, p. 47). In doing so, he ignores
the portions of the license that do not support his position, Twitters guidelines on the matter, and
the widespread public understanding of Twitter and its terms. Since Morel has acknowledged the
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existence of a license and only disputes the scope of the license, it is his burden to prove that the
defendants copying was unauthorized. Bourne, 68 F.3d at 631. Morel cannot meet his burden
of establishing that the Twitter Terms of Service are so limited.
Pursuant to the Twitter Terms of Service, Morel granted a worldwide, non-exclusive,
royalty-free license, to use, copy, publish, display, and distribute posted materials to three
categories of users: Twitter, Twitters partners, and Twitters other users. (Joint 56.1 84,
85). Specifically, the Twitter Terms of Service state in part: This license is you authorizing us to
make your tweets available to the rest of the world and to let others do the same . (Joint 56.1
85) (emphasis added).
Looking now beyond the pleadings, as the Court may do at this juncture, the evidence
shows that Twitters understood intent is to grant a license to other users. Morel relies on the
Courts Order on Defendants Motion to Dismiss as holding that AFP did not qualify as permitted
licensees pursuant to Twitters Terms of Service. However, the Court explained it could not find
on the pleadingsthat Twitter conferred a license to other users. (Dkt. 52, p. 12, emphasis
added). As explained in detail in the Joint Brief, Twitters intent to license to other users
beyond just itself and its third party partners is evidenced by its Terms of Service (Joint 56.1
85, 86, 87) and its Guidelines for Third Party Use of Tweets in Broadcast or Other Off line
Media (Guidelines) (Joint 56.1 91; Hendon Decl. 7, Ex. 5). Further, as explained in detail
in AFPs Motion, this is the widespread understanding of Twitters intent, as evidenced by the
innumerable rebroadcasts of content posted on Twitter. (Joint 56.1 93, 94; see examples and
articles at Hendon Decl., Exs. 6, 7); see alsoPeople v. Harris, No. 2011-N.Y.-080152, --
N.Y.S.2d --, 2012 WL 1381238, at *1 (Crim. Ct. N.Y. County Apr. 20, 2012) (slip opinion is
attached to Joint Brief as Exhibit 2). Furthermore, Morel has admitted he was aware of Twitters
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purpose in his statement that he posted his photos on Twitter/TwitPic in the hopes that his
images would span the globe to inform the world of the disaster. (Joint 56.1 92). Had
Morel truly wanted to engage in the proprietary distribution of his photos, he could have and
should have sent his photos to his licensing agent Corbis, as he eventually did, or posted them to a
different site that did not have Twitters broad license language in its terms. (See Joint 56.1
166).
If Morels position were correct that the Twitter Terms of Service provide no license to
rebroadcast materials posted to Twitter/TwitPic, this would mean that the uncountable number of
daily re-tweets on Twitter and in the media where Twitter/TwitPic posts are copied, reprinted,
quoted, and rebroadcast by third parties, all could constitute copyright infringements. (Joint 56.1
93, 94; see examples and articles at Hendon Decl., Exs. 6, 7). Hundreds of thousands of
Twitters other users rebroadcast Twitter/TwitPic posts every day with no other permission than
Twitters Terms of Service who, under Morels interpretation, are engaging in copyright
infringement. (Joint 56.1 93; Hendon Decl., Ex. 7). If adopted, that position would contradict
Twitters currently accepted, understood and promoted use and purpose of sharing postings.
As a matter of law, AFP and its licensees are third-party beneficiaries of the Twitter
Terms of Service, as agreed to by Morel, are covered by the license therein, and Morel cannot
succeed on his claims for copyright infringement. AFP thus asserts that Morels motion for
summary judgment must fail and that Defendants are entitled to summary judgment as to
Counterclaims 1 and 11.
2. AFP Does Not Dispute Morels Current StandingAFP indicated to the Court that it intended to move for summary judgment that Mr. Morel
lacked standing as to his copyright claims because pursuant to the terms of his contract with his
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licensing agent, Corbis, he had upon submitting the photos at issue in this case, transferred the
exclusive right to enforce his copyrights to Corbis. After AFP raised this issue, Mr. Morel
apparently in recognition of the fact he did not have the rights to pursue this cause of action,
approached Corbis in regard to the assignment of his enforcement rights. As a result, on April 6,
2012, Corbis transferred the right to enforce the copyrights at issue in this case to Mr. Morel ( see
letter of April 9, 2012 attached to Joint Brief as Exhibit 1). AFP notified Morels counsel well
before the deadline for summary judgment that AFP did not intend to raise this issue in its
Summary Judgment pleadings given Corbis April 2012 letter and assignment, and thus has
withdrawn this defense. It is unclear why Morels counsel has briefed this issue in Morels
motion (Morel Brief, pp. 42-47) and wasted the parties and the Courts time on this issue given
that AFP already conceded that it had withdrawn this defense.
B. Getty Images Is Not Liable for Direct InfringementMorel cannot hold Getty Images liable for direct copyright infringement because (i) the
DMCA 512(c) safe harbor protects Getty Images from liability, and (ii) Morel cannot establish
that Getty Images engaged in sufficient volitional conduct in creating a copy of the infringing
works.5
1. The Record Establishes Getty Images Narrow and Passive Role in theDistribution of AFP Content
The record before the Court establishes that Getty Images had a narrow and passive role in
distributing AFPs content, including the Photos at Issue, and that once it became aware of
Morels claims, Getty Images acted diligently and in good faith to address them. Indeed, even
5 While Getty Images does not, for purposes of this motion, dispute either Morels assertion of rights in or GettyImages distribution of the Photos at Issue, Getty Images is not aware of any basis for, and does dispute, any claimthat the display of images on its website, uploaded directly by a content partner like AFP and published automaticallythrough Getty Images system, constitutes a volitional display for purposes of 17 U.S.C. 106(5). See Joint Briefat 28-29. To the extent Morel asserts that Getty Images created derivative works, Getty Images disputes that too;there is simply no allegation, let alone evidence, that would support such a claim.
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Morel concedes AFP and Getty Images played very different roles in distributing the images
(Morel Brief, p. 24). The facts related to this limited role are essential to both of Getty Images
defenses (DMCA 512(c) safe harbor and volition, discussed in this section) and other arguments
(lack of willfulness (see Part II infra), lack of liability under DMCA 1202 (see Part V infra)) on
these cross-motions, and therefore warrant discussion at the outset. These facts are as follows:
Getty Images is vigilant about protecting the rights of the copyright owners ofimages on its system. Getty Images requires content providers to represent and
warrant that they are not contributing infringing content (Joint 56.1 36, 37); it
does not promote or intentionally sell infringing content (Joint 56.1 35, 38, 39);
it posts and maintains a copyright policy on its website (Joint 56.1 41, 42); it
accommodates technical measures on its system which permit copyright owners to
identify and protect their works (Joint 56.1 45); it aggressively investigates
copyright claims (Joint 56.1 44); and it actively educates consumers on the need
for proper licenses (Joint 56.1 40).
Because AFP transmits a massive amount of images to Getty Images back-end systems which are constantly and automatically made available to Getty
Images customers, Getty Images must rely and does rely on AFP to provide
non-infringing content. Getty Images and AFP have a longstanding licensing
relationship under which AFP transmits approximately 1500-2000 images to Getty
Images back-end systems every day, and Getty Images is the exclusive distributor
of this content in North America (Joint 56.1 46-48). Because Getty Images
could not possibly investigate the ownership of such a vast and constant feed of
images, it necessarily and appropriately relies on AFPs direct involvement and
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contractual obligations (Joint 56.1 61). AFP alone chooses the images and
transmits them directly to Getty Images system, without any review, alteration or
involvement by Getty Images (Joint 56.1 49-50). Thus, the processing of
images through Getty Images back-end system, the display of the images on
Getty Images front-end system (its website) and the distribution of the images to
Getty Images customers are generally fully automated processes (Joint 56.1 51-
54, 59); the only applicable exceptions to this are discussed below. This
arrangement has led to virtually no copyright claims, and no unaddressed instances
of known infringement, arising from the more than 5.3 million images AFP has
provided to Getty Images over the course of their relationship (Joint 56.1 62).
Getty Images had a narrow and passive role in the distribution of the Photosat Issue. As with all AFP images, once AFP transmitted the images directly to
Getty Images, Getty Images back-end systems automatically processed the Photos
at Issue, assigning unique asset numbers to each image, and appending a
standardized photo credit phrase to the very end of the caption information
provided by AFP. (Joint 56.1 51, 52). AFP transmitted the eight images a total
of 44 times, and each transmission resulted in a uniquely numbered asset on the
Getty Images system (Joint 56.1 153, 154, 161, 162). The transmission of these
images resulted in the Photos at Issue being automatically pushed through Getty
Images FTP feed to its customers (Joint 56.1 155) with no changes to the
information supplied by AFP. In this case, there was a non-automated step in the
process, further discussed below, when the Photos at Issue then published to Getty
Images website: as happens every time AFP transmits images with a new
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photographer name, an employee of AFP or Getty Images had to manually alter
the format of the byline but not the caption in order for the images to publish;
however, this did notremove or alter the photographers name (whether Morel or
Suero) which remained in the caption provided by AFP every time each image was
displayed and distributed (Joint 56.1 156, 163, 164). Getty Images had no
reason to inquire about or investigate the copyright ownership of the Photos at
Issue at any point in this process (Joint 56.1 156, 159, 160).6
Getty Images was not aware and had no reason to be aware that the Photos atIssue were infringing. Given that it received the Photos at Issue over its feed
from AFP, a trusted partner, and the almost entirely automated manner in which its
back-end systems received and distributed the Photos at Issue, Getty Images had
no knowledge or reason to believe that those images were infringing any
copyright. (Joint 56.1 58, 61, 156, 159-60). During the night after the
earthquake a chaotic period during which Mr. Bernasconi stayed up throughout
the night, frantically trying to arrange for the transport of his photographers to
Haiti (Rosenfeld Supp. Decl., Ex. 2, Bernasconi Dep., pp. 17:5-20, 24:12-15,
26:15-27:19, 94:2-4), two people emailed Bernasconi, over 12 hours apart among
many different emails and the rapidly unfolding events, one with a link to Morels
Twitter feed and one with a link to Sueros. (Morel 56.1 63, 162). He does not
6 Neither AFPs caption correction nor its kill notice provided Getty Images with any reason to make thisinvestigation. When AFP issued the caption correction, the correction was automatically transmitted to all GettyImages feed customers that received the AFP content in the first place (Joint 56.1 176). AFP updated the photocredits from Suero to Morel and transmitted the re-credited assets to the Getty Images system. (Joint 56.1 182-187). The kill notice was also automatically transmitted to all Getty Images feed customers who received thecontent (Joint 56.1 202). Getty Images had already removed the images attributed to Daniel Morel from its ownsite by then, and when it determined that AFP had not been able to resolve the matter with Morel, it engaged inworldwide efforts to notify other customers of the alleged infringement. (Joint 56.1 227-30).
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remember opening either link and is certain that he never made any connection
between the two. (Rosenfeld Supp. Decl., Ex. 2, Bernasconi Dep., pp. 21:15-19,
31:5-7, 93:10-94:16). It is pure revisionist history to pluck these two emails out of
context and argue that Mr. Bernasconi should have clicked on the links, compared
the images and made the connection between Morel and Suero at that point.
Getty Images removed all infringing Morel content promptly after becomingaware of it. As soon as Getty Images was advised that Mr. Morel claimed the
Photos at Issue were being used without his authorization, it expeditiously
removed all images on its system credited to Daniel Morel some as quickly as
within 37 minutes and alerted AFP (Joint 56.1 188-90, 192). It was not aware
and had no reason to be aware that the same images remained on its system,
credited to David Morel or Lisandro Suero (Joint 56.1 191, 207-208). As soon
as Getty Images became aware of this, about two weeks later, it expeditiously
removed all of those images as well (Joint 56.1 212-217).
Getty Images referred Mr. Morels claim to AFP and, when AFP was not ableto resolve the claim with Morel, promptly contacted its licensees. Pursuant to
the Getty Images/AFP Agreement, when Mr. Morel contacted Getty Images in late
February 2010, Getty Images referred (and later formally tendered) the claim to
AFP, who it understood was dealing with this situation (Joint 56.1 218-225).
Upon receiving further inquiries throughout March without any resolution between
AFP and Morel, Getty Images planned and rapidly carried out a global effort to
alert all of its non-feed customers in the first week of April (Joint 56.1 226-
228). (Its feed customers had received the kill notice directly from AFP) (Joint
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56.1 202). Thereafter, Getty Images continued efforts to alert its customers
every time it became aware that, despite its efforts, licensees continued to display
Photos at Issue, and it engaged in a second round of customer communications
when a new set of assets (differently numbered versions of the same photographs)
came to light in June 2010 (Joint 56.1 229-230).7
In sum, Getty Images has a narrow and passive role in the distribution of AFP images, but acted
rapidly and properly to respond to Mr. Morels claims in this instance.
Mr. Morel seeks to controvert this record in his summary judgment papers, portraying
Getty Images role as far larger and more active than it actually was. For instance, he cherry-
picks excerpts from the deposition of Chris Eisenberg, Getty Images Director of Editorial
Content Management, regarding various functions that Getty Images performs as an image moves
from the AFP feed to Getty Images system to its licensees to suggest Getty Images exercised
sufficient volition: Getty Images reformats, organizes, indexes, displays, reproduces, and
licenses any infringing material provided by its partners (Morel Brief, p. 26); sets pricing and
licensing terms for images provided by AFP (id.); and guides viewers to images that may interest
them (id.). Yet Ms. Eisenbergs deposition transcript actually describes a system in which AFP
sends Getty Images a feed of images which automatically goes through a series of data
transformation channels, and then automatically pushes the images to Getty Images internal
system (TEAMS), where unless there is a data problem or missing data they publish
directly to the website. (Hoffman Decl., Ex. S, Eisenberg Dep., p. 36:7-16.) (Moreover, the
7 Morels assertions that Getty continued to distribute the images after the kill notice are misleading. Getty Imagesremoved all Photos at Issue credited to Daniel Morel promptly after it was notified of Morels claims on January 13,2010. It was nevernotified of, and therefore was not aware of (and inadvertently continued to offer for license) thePhotos at Issue misattributed to Suero and David Morel for about two more weeks. (Joint Brief, pp. 20-22; Joint 56.1 188-91). Yet, contrary to the characterizations of Mr. Morel, when it was notified about the Suero-credited Photosat Issue on February 2, Getty Images immediately removed them, as well as David Morel-credited photographsdiscovered in the process. (Joint Brief, pp. 20-22; Joint 56.1 212-16).
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excerpts incorporated into Morels 56.1 Statement only describe the transfer of content from the
feed to Getty Images website, rather than the automatic distribution of this content to Getty
Images feed customers). In other words, as described at pp. 12-14 supra, in the ordinary course
of business Getty Images has noactive involvementand its role is automated from the moment
the AFP images are transmitted to the point at which either feed customers receive them or when
website customers license them. (Joint 56.1 50-54). Although human intervention is
possible at various stages in the process (Morel Brief, p. 26), the record shows that this is the
exception rather than the rule and is extraordinarily rare in the context of content sent through
the feed. Each of Getty Images alleged interventions here provides no basis for liability and/or
flatly contradicts the record:
Morel incorrectly alleges that Getty Images substituted AFP for thephotographers name in the caption information accompanying the Photos at
Issue (Morel Brief, p. 7; Morel 56.1 127, 160, 187, 188, 200, 225, 302, 323,
325). Although at one point, Katie Calhoun, then-Sales Director, North American
Media for Getty Images, incorrectly believed that photographers names had been
replaced in this manner, this phase of the process is not within Ms. Calhouns
purview and the record amply demonstrates that, in fact, every single Photo at
Issue resided in Getty Images back-end system, appeared on its website and was
transmitted to and published by customers with the same photographers name in
the caption as provided by AFP. (Joint 56.1 163-64; Joint 56.1 Counter-
Statement 127, 131, 160, 187, 188, 200, 225, 297, 302, 322-23, 325; Cameron
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Supp. Decl. 2-16, Exs. B-D; Calhoun Supp. Decl. 3-7).8 While that
photographers name was transmitted to Getty Images incorrectly in some
instances (listing David Morel or Lisandro Suero) and therefore was displayed and
distributed incorrectly by Getty Images in those instances, the display and
distribution of those captions was not the result of any volitional act by Getty
Images. Instead, as discussed above, Getty Images merely transmitted content as
provided by AFP consistently with its agreement, industry standards and prior
course of conduct. It properly relied on AFP to provide it with the correct caption
information, and when it became aware that AFP-provided information was
inaccurate, it addressed the errors promptly and appropriately.
Out of the 826 purchases and downloads Morel alleges, he identifies twoisolated instances in which charitable organizations located Photos at Issue on
the Getty Images website, contacted customer service representatives at Getty
Images to ask about pricing and were permitted to go through with the
transactions (Morel Brief, p. 27, Morel 56.1 at 159, 232-33). In both instances
though the parties agree the images were clearly marked as Editorial use
(Morel Brief, p. 28) the Getty Images representatives, acting in the midst of a
global crisis (Joint 56.1 70), permitted the uses for charitable solicitations.
Although these licenses may constitute an immaterial violation of Getty Images
8 As explained in Defendants motion papers, Getty Images back-end systems would not have recognized thephotographers name when AFP transmitted the Photos at Issue to it, and therefore the systems would not haveautomatically validated those images and published them on Getty Images website. Instead, a Getty Images or AFPemployee would have had to manually alter the format of the byline without altering the name of the photographerwhich appeared in the AFP-created caption so that the images could be published to the website. However, thisroutine fix would not have given Getty Images any reason whatsoever to inquire about or investigate copyrightownership. (Joint 56.1 56-58, 156). Moreover, Getty Images feed customers would have received exactly thesame byline field that AFP had populated when it transmitted the Photos at Issue via the feed, as well as the photocredit. (Eisenberg Decl. 13).
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obligations to AFP, they do notestablish that Getty Images knew or had reason to
know yet that Morel contested AFPs or Getty Images rights to license the
specific assets in question. The Soles4Souls license transaction took place before
Corbis first notified Getty Images of Morels claim (compare Morel 56.1 159,
with Cameron Decl., Ex. C (G003825)), and while the Tzu Chi USA Journal
license took place after the initial Corbis notification about Daniel Morel images,
the photograph licensed to Tzu Chi USA Journal was credited to Lisandro Suero
(Joint Counter-Statement 232). Corbis had not yet notified Getty Images that
Suero-credited images belonging to Mr. Morel remained on its website. (Joint
56.1 213-17).
Morel claims Getty Images failed to correct and/or kill the Photos at Issue, orto exercise appropriate diligence in identifying the misattributed images on its
own system and requiring customers to remove them from their sites. (Morel
Brief, pp. 7, 24; Morel 56.1 130, 225, 256, 285-86, 304, 332, 343). As
described above, the record tells a completely different story. Getty Images is
vigilant about protecting users copyrights and responded promptly and
appropriately each time it learned of infringing material in this case, on its own site
or on third-party sites. Getty Images did not issue a caption correction because
AFP issued the corrections through the feed. (Joint 56.1 174). Those corrections
came through the feed as new assets and as such received unique asset
identification numbers. Getty Images feed customers received directly the
correction as sent by AFP and the new assets with correct information were posted
to Getty Images website. Because the images were pulled so quickly, Getty
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Images reasonably thought that there was no need for a further kill notice given the
feed kills and corrected assets. As noted supra pp. 14-15, because this is an
automated process, it was not until Corbis notified Getty Images of the Suero-
credited images that it knew additional assets needed to be removed. As to
customers who had downloaded or purchased the Photos at Issue from Getty
Images website, Getty Images both removed the images promptly from its own
site, and mounted global efforts to notify those customers that they should pull the
images once it discovered that AFP had not been able to resolve the matter with
Mr. Morel. (Joint 56.1 188-90, 212-17, 227-30).
Not a single one of these alleged holes in Getty Images defenses is consequential. Morel
has failed to establish that he is entitled to summary judgment on direct liability, nor even to
identify any genuine issues of material fact sufficient to preclude summary judgment for Getty
Images on its defenses, which are further discussed in the next two sections.
2. The DMCA 512(c) Safe Harbor Applies, Precluding SummaryJudgment for Morel as to His Copyright Infringement Claims Against
Getty Images
Based on the facts discussed above, and as set forth in Defendants Joint Brief, the DMCA
safe harbor protecting internet service providers from copyright liability 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, 17 U.S.C. 512(c)(1), applies squarely to Getty Images in this
case. Morel fails to offer any valid reason why this safe harbor does not apply to Getty Images.
a. Getty Images is a Service Provider and AFP is a User of itsService
Morel makes a half-hearted attempt to argue in a two-sentence section of his Brief that
the DMCA safe harbor does not apply to Getty Image because Getty Images is not a service
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provider and AFP is not a user within the meaning of Section 512 (Morel Brief, p. 49). Morel
offers no legal or factual support for this argument other than a conclusory statement that AFP is a
financial and content partner of Getty Images and therefore cannot be a user under the
DMCA. But governing law and the facts of this case comprehensively refute Morels position.
First, as Getty Images explained in the Joint Brief, there can be no question that it fits
comfortably within Section 512(k)(1)(B)s definition of service provider: a provider of online
services or network access, which is so broad that courts have found it difficult to image
providers of online services that would not fall within it. (Joint Brief, p. 13-14 (citing Wolk v.
Kodak Imaging Network, Inc., No. 10 Civ. 4135, 2011 WL 940056, at *2 (S.D.N.Y. Mar. 17,
2011);In re Aimster Copyright Litigation, 252 F. Supp. 2d 634, 658 (N.D. Ill. 2002)).
Second, it is equally clear that AFP is a user of Getty Images system. Although user
is not defined in Section 512, the text of the statute suggests that it means any entity that stores or
transmits content on a service providers network or system, a category which is necessarily very
expansive given the wide variety of service providers that the statute contemplates. The case
law establishes that users include both content creators that store content on (or distribute
content through) a providers system or network andend-users who seek to obtain such content.
(See Joint Brief, p. 14).
Morels attempt to exclude AFP from the statutory definition of user by characterizing it
as a financial and content partner of Getty Images (by virtue of its License Agreement with
Getty Images) finds no support in either the statute or the case law. Indeed, it is difficult to point
to a case applying the Section 512(c) safe harbor which does not involve either a website
operators alleged liability arising out of its contractual relationship with a website user (as users
of such sites must generally enter into agreements when registering in order to post user-
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generated content) or a web hosting services alleged liability arising out of its contractual
relationship with the hosted site (for infringing activity on a website the ISP hosts). See, e.g.,
Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627 (S.D.N.Y. 2011) (safe harbor
protected website operator from liability arising from user-generated content);Rosen v. Hosting
Services, Inc., 771 F. Supp. 2d 1219 (C.D. Cal. 2010) (safe harbor protected ISP from liability
arising out of website it hosted); Viacom Intl, Inc. v. YouTube, Inc. (Viacom I), 718 F. Supp. 2d
514 (website operator), affd, 676 F.3d 19 (2d Cir. 2012); UMG Recordings, Inc. v. Veoh
Networks Inc., 620 F. Supp. 2d 1081 (C.D. Cal. 2008) (website operator);Io Group, Inc. v. Veoh
Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008) (website operator); Perfect 10, Inc. v.
CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) (ISP).
b. Getty Images Fits Squarely Within the Safe Harbor as RecentlyClarified by the Second Circuit in Viacom v. YouTube
Morel also suggests the Second Circuits recent decision in Viacom Intl v. YouTube Inc.
(Viacom II), 676 F.3d 19 (2d Cir. 2012) precludes its application to Getty Images distribution of
the Photos at Issue. However, Morels cursory discussion misinterprets and misapplies the
Second Circuits ruling in that case, which actually confirms Getty Images entitlement to the safe
harbor here.
Most significantly, the Viacom IICourt affirmed that the knowledge requirements in
Section 512(c) that a service provider have actual knowledge that the materialis infringing
or facts and circumstances from which infringing activity is apparent, 17 U.S.C. 512(c)(1)(A)
refer to knowledge ofspecific and identifiable infringements, rather than a general
knowledge that infringements exist. 676 F.3d at 30 (emphasis added) (quotingViacom I, 718 F.
Supp. 2d at 523). Here, Getty Images had no actual knowledge and no reason to know about the
allegedly infringing images until it received notice from Corbis on January 13 and February 2,
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that two separate categories of infringing content (the photos attributed to Daniel Morel and the
misattributed photos) had been posted, and in each case it promptly removed them all. (Joint
Brief, pp. 16-22).
Morels reliance on three of the Second Circuits holdings in Viacom IIis also inapposite.
First, the Second Circuit ruled that the willful blindness doctrine may be applied, in appropriate
circumstances, to demonstrate knowledge or awareness of specific instances of infringement
under the DMCA. 676 F.3d at 35. At the same time, however, the Court made clear that willful
blindness cannot be defined as an affirmative duty to monitor. Id. (citing Section 512(m) safe
harbor shall not be conditioned on a service provider monitoring its service or affirmatively
seeking facts indicating infringing activity) (emphasis added). In other words, willful blindness
must involve a deliberate effort to avoid guilty knowledge rather than a failure to monitor. Id.
(emphasis added). With no analysis or citation, Morels conclusory statement that the
undisputed facts and inferences establish willful blindness (Morel Brief, p. 50) fail to meet his
burden. Indeed, the undisputed facts show that Getty Images lacked the requisite knowledge or
awareness to trigger application of the willful blindness doctrine (see Joint Brief, pp. 16-21).
Second, Morel misconstrues the Second Circuits discussion regarding the statutory
requirement that an ISP 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,
512(c)(1)(B), to suggest without analysis or citation that Getty Images fails to meet this
requirement, because it received a direct financial benefit from the license and sale of the Photos
at Issue. (Morel Brief, p. 50). However, as set forth in Getty Images moving brief, Congress and
the courts have made clear that in this context (i) direct financial benefit requires promotion or
mark-up of infringing content, rather than merely profiting from the inadvertent appearance of
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such content on an otherwise legitimate system (see Joint Brief, pp. 22-23); and (ii) right and
ability to control means something more than the ability to remove or block access to
infringing materials, a right and ability which the statute presumes of all providers, id. at 23-24;
Viacom II, 676 F.3d at 37-38. Morel has not raised any genuine issue of material fact suggesting
that either of these factors is satisfied here. Indeed, the undisputed facts show that Getty Images
did not receive a direct financial benefit from its distribution and licensing of the Photos at Issue,
and did not have sufficient right and ability to control the Photos at Issue to take it out of the safe
harbors protection. (See Joint Brief, pp. 22-24).
Third, Viacom IIalso reaffirmed that the safe harbors application to alleged infringement
by reason of the storage of materials at the direction of a user encompasses not only storage of
material but other functions that a website executes to facilitat[e] access to user-stored material.
676 F.3d at 38-39. While Morel seeks to analogize Getty Images conduct in connection with the
Photos at Issue to the single YouTube software function the Viacom IIcourt suggested might fall
outside of the safe harbor, the comparison is inapposite (Morel Brief, p. 50-51). Here, Getty
Images stored AFP content and engaged in certain functions to facilitate access to that content.
(See Joint Brief, p. 15 & n.5). Its operations (storing, displaying and offering to users the AFP
content) are for more analogous to the functions held protected in Viacom II(transcoding or
making copies of a video in a different code; playback or delivering copies to a users browser;
and the related videos function, or recommending videos similar to the one chosen by the user)
and not at all like the one function on which the Court remanded (syndication or licensing the
videos to other providers that could themselves offer them for sublicense on mobile platforms).
Thus, Viacom IIactually provides further support for application of the safe harbor to Getty
Images in this case.
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3. Getty Images Did Not Act With Sufficient Volition to be Held Liablefor Direct Infringement
As set forth above, the record in this case establishes Getty Images limited and passive
role in the alleged infringement. Like Cablevision in Cartoon Network LP, LLLP v. CSC
Holdings, Inc., 536 F.3d 121, 131 (2d Cir. 2008) and Kodak in Wolk v. Kodak Imaging Network,
Inc., No. 10 Civ. 4135, -- F.Supp.2d --, 2012 WL 11270 (S.D.N.Y. Jan. 3, 2012), Getty Images
designed, houses and maintains a system which engages in the copying at the direction of users,
rather than engaging in actual infringing conduct with a nexus sufficiently close and causal to the
illegal copying. (Joint Brief, p. 27; Cartoon Network, 536 F.3d at 130). Morel argues that Getty
Images is a UK and North American-based imagery company in the business of procuring and
distributing images and related products and services via the internet and retains an active sales
and market force to distribute and promote its web content (Morel Brief, p. 26). Yet none of
these facts distinguishes Getty Images from companies like Cablevision, also a large corporation
which procures, distributes and promotes its content. Morel also catalogs the various functions
that Getty Images performs with respect to the images (claiming it reformats, organizes,
indexes; id.) and claims that human intervention is possible at each step; as discussed above,
he has not shown that such intervention actually happened at each step, and the little human
involvement that did occur is not sufficiently close and causal to the illegal copying, to warrant
the imposition of liability. Morel fails to establish that he is entitled to summary judgment on this
issue. Getty Images is, for the reasons set forth in its moving brief.
C. The Plaintiffs Allegations That the Post Did More Than Display CertainPhotos Are Erroneous
The Post concedes that it publicly displayed a subset of the Photos at Issue, based on a
license from its trusted licensor Getty Images and with no reason to believe that the use was
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unauthorized. (Joint 56.1 235, 237). If Morel is able to overcome the license defense asserted
by AFP, the Post will concede liability to Morel for direct infringement with regard to the public
display of these photographs, while expressly preserving all other defenses. The record is
undisputed that when the Post received notice in June 2010 that there was a potential copyright
issue with the display of three of those photographs on the washingtonpost.com Haiti earthquake
gallery, the Post acted immediately to disable public access to the photographs and believed that it
had done so successfully. (Joint 56.1 247-54).9
Morels untimely allegation that the Post on January 13, 2010 downloaded other Photos at
Issue (Morel Brief, p. 29; Morel 56.1 190) is a different story. Morels motion on this point
should be denied for three separate and independently sufficient reasons. First, Morels Third
Amended Counterclaim contains no such factual allegation. To entertain it now would unfairly
deprive the Post of the opportunity to defend itself against a new claim of copyright infringement.
See Marinelli v. Chao, 222 F. Supp. 2d 402, 406-07 (S.D.N.Y. 2002) ([A] party may not assert
or develop allegations not contained in the complaint.). Second, the Post, a customer of Getty
Images feed service, did not download the photographs, a step not required of feed customers.
(Joint 56.1 233). The photographs were downloaded instead by employees of the publications
Slate and The Root, which are owned and operated by a different company (The Slate Group
LLC), not sued here, which had access to the Getty Images downloads pursuant to its own
licensing agreement entirely separate from the Posts. (Joint 56.1 Counter-Statement 190;
McLaughlin Supp. Decl. 5; Joint 56.1 67-68). Third, the conduct that Morel alleges a news
organization downloading single copies of images for the purpose of considering whether or not
9 Although AFP sent the January 14, 2010 kill notice to all feed customers, including the Post, the undisputed recordevidence is that no one in the Posts Photo Department saw the kill notice regarding the Photos at Issue. (Joint 56.1 239).
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to later engage in what it believed would be the licensed public display of one or more of the
images is self-evidently a fair use protected by 17 U.S.C. 107. In this context, a single
download of a single image is de minimis copying used to determine whether or not a licensed
public display will be made. The business of licensing photographs could not function if such
copying were held to be copyright infringement.
Morel also erroneously asserts that the Post made available one of the Photos at Issue to
other news organizations. (Morel Brief, p. 29). This is incorrect. The hearsay evidence that
Morel cites for this proposition (Morel 56.1 260), shows the opposite that a Yahoo!
contributors January 2010 article merely linked to a photograph that appeared on the Posts own
website, and was not provided to any other website. (Joint 56.1 Counter-Statement 260).
II. The Defendants Did Not Act WillfullyDefendants oppose Morels motion for summary judgment on willfulness. Far from being
entitled to summary judgment on this issue; the record evidence establishes beyond dispute that
they did not act willfully.
In order for an infringer to be found willful, [t]he standard is simply whether the
defendant had knowledge that its conduct represented infringement or perhaps recklessly
disregarded that possibility. Hamil American Inc. v. GFI, 193 F.3d 92, 97 (2d Cir. 1999)
(internal quotation marks and citation omitted). Importantly, plaintiff must be able to demonstrate
that the defendant knew that this alleged copying represented copyright infringement. 4 Melville
B. Nimmer & David Nimmer,Nimmer on Copyright 14.04[B][3][a] (2012) (Nimmer)
(adopted by Fitzgerald Publg Co. v. Baylor Publg Co., 807 F.2d 1110, 1115 (2d Cir. 1986);
Fallaci v. New Gazette Literary Corp., 568 F. Supp. 1172, 1173 (S.D.N.Y. 1983)). And while
Morel cites several cases indicating that reckless disregard is sufficient for willful infringement,
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those cases do not support a finding of willful infringement here. (Morel Brief, p. 31, citing
Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 113 (2d Cir. 2001) (failure to investigate
infringement after specifically being put on notice of similarity);Island Software and Computer
Service, Inc. v. Microsoft Corp., 413 F.3d 257, 264 (2d Cir. 2005) (refusing to find reckless
disregard on a motion for summary judgment);Bryant v. Media Right Productions, Inc., 603 F.3d
135, 143 (2d Cir. 2010) (found no reckless disregard), cert. denied, 131 S. Ct. 656 (2010)).
Morels claims of willful infringement must fail because he cannot show that Defendants
intended to engage in copyright infringement. As discussed in Defendants Motion, AFP believed
at the time that it downloaded and distributed the Photos at Issue that it was permitted to do so
(even if it is later found to have been incorrect). (Joint 56.1 134). Morels suggestion of willful
infringement by Getty Images and the Post is even weaker, as each received the Photos at Issue
from a trusted partner and had no knowledge of the source of the photos. (Joint 56.1 48-50, 58,
60-61, 153-54, 156, 159-60; 233, 237). While Morel would like the Court to believe that
Defendants acted in some nefarious willful manner, the factual record does not bear him out.
Morel has not provided any evidence whatsoever to show that Defendants acted with knowledge
that their actions constituted copyright infringement, or reckless disregard for that possibility. His
unsupported feelings or beliefs cannot save his claim from being dismissed on summary
judgment.
A. AFP Did Not Act WillfullyWillful infringement typically involves continuing to act after actual notice from the
copyright holder to cease the infringing activities or when it is patently clear that the defendant
proceeded in violation of the copyright holders rights. See, e.g., Castle Rock Entmt v. Carol
Publg Grp., Inc., 955 F. Supp. 260 (S.D.N.Y. 1997), affd, 150 F.3d 132 (2d Cir. 1998)
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(defendant continued to publish book after receiving cease and desist letter). No such egregious
action occurred here.
Morel claims that when AFP issued its caption correction in the early morning hours of
January 13, 2010, AFP knew that Morel was the author of the Photos at Issue. (Morel Brief, p.
32). There is a difference between learning the name of a photographer and knowing that alleged
infringing conduct was taking place. While AFP was at that time put on notice that Morel, rather
than Suero, was the photographer, that made no difference to AFPs understanding of its right to
distribute the photos. The photos were still available from Twitter through Morels TwitPic page,
where they were posted in high resolution, and were thus subject to the license in the Twitter
Terms of Service. (Joint 56.1 82-84, 95, 171). Amalvy explained that he understood that
Morel was someone in Haiti who wanted to show the situation in Haiti and provide testimony
through his photos of the situation in Haiti. (Amalvy Dep., pp. 179-180, as attached as Exhibit C
to Rosenfeld Declaration, Dkt. 139-3). At that moment, for Amalvy, thats Lisandro [Suero] or
Daniel [Morel], for me is no difference. (Id. at 180:13-15). Nor were there any notices on
Morels TwitPic page that would have put AFP on notice that Morel did not intend to be bound
by the Twitter Terms of Service or was restricting usage in any other way. (Joint 56.1 96).
It was not until Corbis contacted AFP late on January 13, 2010, that AFP was first put on
notice that Morel was asserting he was not offering the Photos at Issue pursuant to the Twitter
Terms of Service license. (Joint 56.1 192-193). AFP investigated Corbis claim, attempted to
contact Morel, and when it received no response, took action to expeditiously remove the images
from Image Forum, its archive, and sent a Mandatory Kill notice to all of its subscribers, as
discussed above. (Joint 56.1 195-206, 210).
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Morel also implies that AFPs Kill Notice was only for photos credited to Daniel Morel
and that this somehow shows willfulness. However, AFPs employees have testified that they
had previously issued a Caption Correction changing all the Suero-credited photos to be Morel-
credited. (Joint 56.1 173-176). AFPs employees testified that they believed, in good faith,
that the Caption Correction in combination with the Kill Notice was sufficient to kill all of the
Photos at Issue. (Joint 56.1 204-205). Once again, Mr. Morel offers no admissible evidence to
contradict AFPs position.
Morel also attempts to argue that an inference of willfulness can be drawn because of
AFPs failure to follow its own written guidelines or the customary ethical principles which
govern the journalism community. Morel, however, again has not provided any record evidence
to support these claims. On the contrary, the record evidence supports that AFPs employees
acted in good faith. (Joint 56.1 172-175, 179-182, 192-206).
B. Getty Images Acted InnocentlyNone of the factors that Morel cites as evidence of Getty Images willfulness establish his
entitlement to judgment as a matter of law. For the reasons set forth in Defendants moving
papers, Getty Images conduct was innocent, not willful. (Joint Brief, pp. 41-44).
Morel claims that because Getty Images knew AFP had issued a caption correction
changing the name of the photographer of the Photos at Issue to Daniel Morel, Getty Images was
willfully blind in not checking to see [to] whom the image had been credited originally. (Morel
Brief, p. 33). Yet the caption correction plainly did not apprise Getty Images of the alleged
infringement; it did not identify Sueros name, provide thumbnail images of the Photos at Issue or
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identify the previously submitted images in a way that was evident to Getty Images. 10 (Amalvy
Decl., Ex. C) The corrected versions of each of the Photos at Issue, listing Morels name, did not
mention the name of the photographer (Suero) to whom they had originally been attributed.
(Amalvy Decl., Ex. D). Nor does the Getty Images system automatically remove or update assets
that have been corrected. (Joint 56.1 182-86). Morel argues that Getty Images should have
manually searched all photos of the Haiti earthquake in its system to find the misattributed
images. Yet, as Viacom IIexpressly held, a service provider is no obligated to monitor or
investigate its site and any alleged failure to do so does not rise to the level of willful blindness.
676 F.3d at 35.
11
Morel also argues that [n]otwithstanding the take down, Getty continued to display,
license and sell Haiti Earthquake Images. (Morel Brief, p. 34). This is misleading. As
Defendants have established in detail, Getty Images received notice of the images credited to
Daniel Morel on January 13, 2010, and notice of the misattributed images on February 2, 2010,
10 Morel also argues that Getty Images supposed lack of concern with the implementation of AFPs kill noticeprovides evidence of willfulness. (Morel Brief, p. 34). But there is no evidence of any lack of concern; in keepingwith the parties course of dealing, AFP notified Getty Images feed customers who received AFP content, so it wasnot necessary for Getty Images to do so; Getty Images both removed the images promptly from its own site andcarried out global efforts to notify customers that they should remove the images, once it discovered that AFP had notbeen able to resolve the matter with Mr. Morel. (Joint 56.1 227-30). Moreover, the AFP Kill Notice did notidentify specific Getty Images asset numbers, provide thumbnails of the images in question, or provide notice thatany of the Photos at Issue were credited to Lisandro Suero or David Morel, so it could not have given Getty Imagesnotice that misattributed images remained on its site. (Joint 56.1 208). The cases cited in Morels own brief (at p.34) only underscore the point that such a speculative showing of willfulness does not warrant summary judgment forplaintiff on the issue. CompareEncyclopedia Brown Prods. Ltd. v. Home Box Office, Inc., 25 F. Supp. 2d 395, 404(S.D.N.Y. 1998) (granting defendant cable operators motion for summary judgment as to willfulness, where operatorhad no control over HBOs content) and Lipton v. Nature Co., 71 F.3d 464, 472 (2d Cir. 1995) (factual issuesprecluded plaintiffs motion for summary judgment as to willfulness, where defendant argued that he innocentlycopied what he believed to be unprotectable compilation) with N.A.S. Import Corp. v. Chenson Enters., Inc., 968 F.2d
250, 253 (2d Cir. 1992) (finding willfulness after full trial, where defendant had store one block away from plaintiffsstore, created buckle identical to plaintiffs and continued selling infringing work after several demand letters).
11 Morel overreaches to make this point, arguing without any apparent basis that there were less than a handful ofphotographers distributing images of the earthquake and probably no more than 13 or 14 images on January 12-13, 2010. (Morel Brief, p. 33; Morel 56.1 304). In fact, even aside from Morels images there were more than 200images relating to the Haiti earthquake on Getty Images website at that time. (Cameron Supp. Decl. 28). As setforth above, Getty Images did not have an obligation to investigate its site, let alone search through hundreds o