McGucken v. Shutterstock, Inc.

Summary

The United States Court of Appeals for the Second Circuit affirms summary judgment for Shutterstock on McGucken’s false copyright management information claims under 17 U.S.C. § 1202. The court vacates summary judgment on the copyright infringement claims, holding that factual disputes remain concerning whether the alleged infringement resulted from storage at a user’s direction and whether Shutterstock had the right and ability to control the infringing activity for purposes of the DMCA safe harbor. The case is remanded for further proceedings.

Holdings

1. A plaintiff opposing summary judgment on a § 1202(a) false-CMI claim must identify specific facts creating a triable issue that the defendant knew the CMI was false and acted with the intent to induce, enable, facilitate, or conceal infringement. McGucken failed to do so.
2. A plaintiff opposing summary judgment on a § 1202(b) claim must present evidence creating a triable issue that the defendant knew the CMI had been removed or altered without authorization and knew, or had reasonable grounds to know, that distribution would induce, enable, facilitate, or conceal infringement. McGucken failed to do so.
3. An online platform that facilitates users' ability to license uploaded images may qualify as a service provider under the broad definition in 17 U.S.C. § 512(k)(1)(B); the fact that it acts as principal on copyright licenses does not categorically exclude it.
4. A service provider reasonably implements a repeat-infringer policy if, under appropriate circumstances, it terminates users who repeatedly or blatantly infringe copyright; the statute does not require perfect prevention or termination of every repeat infringer.
5. A plaintiff asserting that metadata is a standard technical measure bears the burden of establishing that it satisfies the statutory requirements, including development through broad consensus in an open, fair, voluntary, multi-industry standards process. McGucken did not meet that burden.
6. The § 512(c) safe harbor does not apply when a service provider engages in manual, substantive, and discretionary review that imposes its own aesthetic, editorial, or marketing judgment on user content accepted for the platform. Whether Shutterstock's review had that character presented a triable issue of fact.
7. Whether a service provider has the right and ability to control infringing activity depends on whether it exercised substantial influence over user activities, including the coercive effect and frequency of intrusions into user autonomy. The record presented a triable issue as to Shutterstock's control.

Questions Presented

1. Whether McGucken presented sufficient evidence to create a triable issue that Shutterstock possessed the scienter required for liability under 17 U.S.C. § 1202(a).
2. Whether McGucken presented sufficient evidence to create a triable issue that Shutterstock possessed the scienter required for liability under 17 U.S.C. § 1202(b).
3. Whether Shutterstock established as a matter of law that the alleged infringement occurred by reason of storage at the direction of a user under 17 U.S.C. § 512(c)(1).
4. Whether Shutterstock established as a matter of law that it lacked the right and ability to control the infringing activity under 17 U.S.C. § 512(c)(1)(B).
5. Whether summary judgment was proper on McGucken's copyright-infringement claims and false CMI claims.

Disposition

reversed_and_remanded