Accordingly, Photobucket was entitled to the Section 512(c) safe harbor, and the court denied the
motion for a preliminary injunction.^2704
The plaintiff subsequently sought summary judgment of infringement against both
Photobucket and Kodak – in Kodak’s case, for its operation of the Kodak Gallery, which allowed
its customers the ability to upload their personal digital photographs, create and store albums to
share with family and friends, and to order prints of and products containing their digital
photographs. Beginning in 2009, Photobucket and Kodak entered into an agreement that
allowed Photobucket users to print images obtained from Photobucket on products available
through the Kodak Gallery.^2705
With respect to Kodak, the plaintiff sought to hold it liable for direct copyright
infringement by reproducing unauthorized copies of her images on products available through
the Kodak Gallery. The court rejected her claim because there was no evidence of volitional
conduct on the part of Kodak required for direct liability. Specifically, the record established
that the transfer of information about an order from the Kodak Gallery web site to the fulfillment
vendor was done electronically through an automated computer system and that all information
displayed on the Kodak Gallery web site, including the simulation of products containing the
Photobucket images, was done electronically. There was no dispute that any reproduction,
display or transmission of the plaintiff’s images by or through the Kodak Gallery web site was an
automated process with no human intervention by any employee of the defendants. The fact that
the plaintiff’s images were copied into product simulations in addition to being transmitted to
fulfillment vendors did not constitute a volitional act where the copying was automated. The
court also ruled that the display of copyrighted images on the defendant’s web site did not
demonstrate volition either.^2706
The court held that Photobucket was entitled to the Section 512(c) DMCA safe harbor.
With respect to the threshold conditions of the safe harbor, the court found that Photobucket had
an adequate policy to terminate repeat infringers. The evidence established that it had developed
a policy, made available on its web site, under which copyright holders could submit a take-
down notice and when Photobucket received those notices, both those that included URLs and
those that did not, it acted to remove the infringing material. The court rejected the plaintiff’s
argument that Photobucket failed to accommodate standard technical measures because it
afforded its users computer tools that allowed users to obliterate, hide or crop out the copyright
watermarks on images uploaded. The court noted that the plaintiff had not suggested that
Photobucket advised or encouraged its users to use the photo editing tools to circumvent the
copyright notice. In any event, the court found the fact that the watermarks appeared on content
on the site suggested that Photobucket did, in fact, accommodate standard technical measures.
Although the plaintiff argued that the editing software interfered with standard technical
measures, the court noted that it was not Photobucket, but rather users, who would use the
(^2704) Id. at 16-19, 25.
(^2705) Wolk v. Kodak Imaging Networks, Inc., 840 F. Supp. 2d 724, 728, 730 (S.D.N.Y. 2012), aff’d sub nom. Wolk
v. Photobucket, Inc., 569 Fed. Appx. 51 (2d Cir. 2014) (summary order).
(^2706) Id. at 742-43.