The rulings of this case with respect to the Section 512(c) safe harbor are discussed in
Section III.C.6(b)(1)(ii) above.
q. Wolk v. Kodak Imaging NetworkIn Wolk v. Kodak Imaging Network, Inc.,^2701 the plaintiff sought a preliminary injunction
against the Photobucket web site preventing it from infringing on copyrights in her photographs.
The plaintiff had submitted various notices to Photobucket requesting that images infringing her
copyrights be taken down, some of which complied with the DMCA notice requirements and
some of which did not. Where a DMCA compliant notice was submitted, Photobucket took
down the allegedly infringing photo. Photobucket also had taken down photos where the
plaintiff had sufficiently identified the alleged infringements, even if the notice was not DMCA
compliant. Despite these removals, the plaintiff contended that more infringing photos remained
on Photobucket, although she had not provided DMCA compliant notices to remove them.^2702
Photobucket relied on the Section 512(c) safe harbor as a shield against the broad
preliminary injunction sought by the plaintiff. The court ruled that Photobucket had satisfied all
the predicate conditions of Sections 512(i) and 512(k) for the safe harbor. The plaintiff argued
that her past notices of infringement also served as DMCA compliant notice of other present and
future alleged infringements of the same copyrighted works posted at different times and at
different locations. She contended, in essence, that Photobucket was now aware that her
copyrights were being infringed on its site, and it was thereafter required to police its site to
uncover current infringements and prevent future infringements, without her providing DMCA
compliant notices in each instance. The court rejected this attempt to shift the burden of policing
from the plaintiff to Photobucket, citing Section 512(m)(1) and several cases holding that the
underlying purpose of the notice requirements of the DMCA was to place the burden of policing
copyright infringement on the owner of the copyright. Without receiving notices identifying and
locating each instance of infringement, Photobucket did not have actual knowledge of the
infringements or awareness of facts or circumstances from which infringing activity was
apparent.^2703
The court also concluded that Photobucket was not disqualified from the Section 512(c)
safe harbor, in that it did not have the right or ability to control the posting of infringing photos
on its site and did not receive a direct financial benefit from the alleged infringing activity. The
court noted that a right and ability to control may take the form of prescreening content,
providing extensive advice to users regarding content, and editing user content, but Photobucket
did not engage in any of such activities (and the size of its web site curtailed its ability to do so).
The court rejected the plaintiff’s argument that Photobucket received financial gain through its
relationship with Kodak, under which it received a share of sales derived from Photobucket. The
court noted that such financial gain was derived from allowing all users access to Kodak’s
services, not directly and specifically from allowing users to print infringing material.
(^2701) 2011 U.S. Dist. LEXIS 27541 (S.D.N.Y. Mar. 17, 2011).
(^2702) Id. at 1-2.
(^2703) Id. at 4-7, *11-14.