HuffPost Gets 512(c) Defense for Contributor-Uploaded Photo–Downs v. Oath

A Huffington Post contributor, Kim, uploaded a post with a photo. The day after Kim posted, HuffPost’s editor, Cohn, reviewed the post for offensive or unlawful content, added content tags, and linked to a related video; but Cohn didn’t modify Kim’s content. The photographer claims the photo uploaded by Kim is infringing and sued Huffington Post (now owned by Oath). Oath successfully defended on Section 512(c) grounds.

Stored at the User’s Direction. On “the question of whether Cohn’s cursory screening and modification place Kim’s article outside of the safe harbor’s protections, the case law supports Oath’s position over Downs’s. As the Tenth Circuit explained in BWP Media USA, Inc. v. Clarity Digital Group, LLC, ‘if the infringing content has merely gone through a screening or automated process, the [service provider] will generally benefit from the safe harbor’s protection.'” The court distinguished Mavrix because “the defendant there chose a small subset of user submissions to post publicly.” Cohn’s addition of content tags didn’t change the analysis (cites to Io v. Veoh and the district court ruling in UMG v. Veoh).

Red Flags. Allegedly, the Kim-uploaded photo had a photo credit to the NY Daily News. The photographer argued this created red flags of infringement for Cohn. The court says no:

HuffPost did not have red flag knowledge of the alleged infringement in Kim’s article. As in Capitol Records [v. Vimeo], Cohn’s viewing of Downs’s photograph may have been brief. And as in Capitol Records, Cohn was viewing Kim’s article for multiple purposes, including subject matter classification and screening for offensive content. It is of course possible that Cohn saw the New York Daily News photo credit, but Capitol Records makes clear that this possibility is not enough to create a triable issue as to red flag knowledge…. the Court does not see how Cohn, any more than the employees in Capitol Records, could be expected to distinguish between infringements and fair or authorized uses.

Financial Benefit. “it is not enough for Downs to show that HuffPost ran commercial advertisements on its website. If that were sufficient, then practically every revenue-generating website would satisfy the financial benefit prong.” The court continues:

Downs has made no showing that the advertising revenue HuffPost received was “distinctly attributable” to infringing activity. There is no evidence that HuffPost encouraged infringement, or that it promoted advertising by pointing to infringement, or even that its users primarily engaged in infringing conduct. To the contrary, the undisputed evidence shows that HuffPost simply ran advertisements on user-generated articles, some of which inevitably contained infringing material.

This is a well-supported conclusion in the precedent, but plaintiffs keep arguing otherwise.

Right and Ability to Control. Courts have redefined this factor to occur when the defendant exerts “substantial influence” over users’ activities. The court summarily says that didn’t happen here because “contributors self-published their articles directly to the website and…HuffPost engaged in cursory screening and modification.”

Overall, this is a good ruling for Oath, any sites running “contributor” programs, and the 512(c) safe harbor. I wish all 512(c) rulings were this easy to blog.

Case citation: Downs v. Oath Inc., 2019 WL 2209206 (S.D.N.Y. May 22, 2019)