It’s Really Hard to Win a Motion to Dismiss Based on 512(c)–Myeress v. Buzzfeed

512(c) and 230 diverge in key procedural respects, including the implications of scienter for motions to dismiss. Section 230(c)(1) has no scienter standards, so defendants can win on motions to dismiss despite virtually any scienter allegations. In contrast, Section 512(c)’s burgeoning list of scienter exceptions make it difficult or impossible to win on a motion to dismiss, even if the plaintiff makes only perfunctory allegations of scienter. Plus, Section 512(c) defenses have a dozen other elements, and motions to dismiss need to negate all of them–incredibly hard when courts treat all complaint allegations as true. So we can certainly imagine judges screening out weak pro se cases using 512(c) on motions to dismiss, but in virtually all other cases, a 512(c) motion to dismiss is probably wasted time and money. Like today’s case.

This case involves a Buzzfeed article titled “Top 10 Things To Do in Miami.” (I couldn’t easily find the article online). The case implies the article, including the photo, was posted by the Buzzfeed “community.” Allegedly, Buzzfeed editors review community submissions and promote the ones they like. The article in question included the plaintiff’s photo, which was credited to “” The photographer sued Buzzfeed for copyright infringement. Buzzfeed moved to dismiss based on 512(c).

The court accepts the complaint’s scienter allegations without any scrutiny:

Under 512(c)(1)(A), Defendant must demonstrate that it did not have “actual knowledge that the material” was infringing and that it was “not aware of facts from which infringing activity is apparent.” Defendant argues that Plaintiff “pleads no plausible basis to believe [Defendant] had the requisite knowledge of infringing activity that would remove its DMCA protection.” To the contrary, Plaintiff pleads that Defendant’s editors “fully understand that [the source of the Photograph] is not an open source, stock photo, or any other form of file sharing or public domain source for images,” and that Defendant’s editors therefore “had full knowledge that publishing an image” from that source “is an infringement of the rights of the owner of the image.” Although it may be difficult for Plaintiff to prove ultimately that Defendant knew that publishing the Photograph was infringing activity, accepting the allegations in the complaint as true, and drawing all reasonable inferences in Plaintiff’s favor, I find it reasonable to infer from these allegations that Defendant had knowledge of the alleged infringement at the time it promoted the Miami Article. This inference is further supported by Defendant’s policy that it “will review” posts submitted to the Community Section of Defendant’s Website and will “promote” the ones that they like. Moreover, a “copyright owner is entitled to discovery in order to obtain the specific evidence it needs to sustain its burden of showing that the service provider did in fact know of the infringement or of facts that made infringement obvious.”

Rule 12(b)(6) requires courts to accept all plaintiffs’ allegations as true when resolving a motion to dismiss. However, the plaintiff’s allegations in this case are easy to make and potentially assertable in virtually every case where 512(c) may be a defense. Courts could invoke Twombly and Iqbal to apply more critical scrutiny of complaint allegations on a motion to dismiss, instead of just rotely accept the allegations. Unless a court scrutinizes scienter allegations in a complaint, most 512(c) defendants have little chance of winning a motion to dismiss.

The court notes several other elements of a 512(c) defense that couldn’t be established on a motion to dismiss:

  • Buzzfeed argued that it expeditiously removed the post and provided a screenshot of the removed page. The court says that it couldn’t consider this evidence on a motion to dismiss.
  • The complaint properly alleged the “direct financial benefit” element with the allegation “Defendant ‘publishes web-based news and entertainment articles, with substantial advertising’ on its Website.” Again, an allegation that most complaints can make, even though simply having advertising on the site isn’t enough to foreclose 512(c).
  • The complaint properly alleged the “right and ability to control” element because “Defendant’s policy of reviewing all articles and promoting the ones that its editors like supports an inference that Defendant has control over the content on the Community Section of its Website.” Again, this level of “control” probably isn’t enough to foreclose 512(c), but the court rubberstamps the allegation.
  • The complaint didn’t allege that Buzzfeed had a designated agent for receipt of 512(c)(3) notices, and the court implies that it would not consider Buzzfeed’s evidence of a designation on the motion to dismiss unless the complaint referenced it.

I didn’t go back to check how many times a 512(c) defense has worked on a motion to dismiss. If other courts take the same approach as this one, motions to dismiss should virtually never work when based on 512(c).

Case citation: Myeress v. Buzzfeed Inc.2019 WL 1004184 (SDNY March 1, 2019)