The Twitter ruling also gives an early sense of how lower courts might navigate the Cox v. Sony Supreme Court ruling. Though it’s only a single datapoint and is surely skewed because the judge had written the opinion before the Supreme Court’s decision, the court’s “solution” highlights several ways courts can work around the Cox ruling that may undermine its seemingly defense-favorable result.

Michael Grecco Productions, Inc. v. TikTok, Inc., 2025 WL 4672998 (C.D. Cal. March 12, 2025). The CourtListener page.

[Note 1: This year-old opinion just showed up in my alerts.]

[Note 2: Plaintiff’s lawyer is CopyCat Legal and Lauren M. Hausman, who I mentioned in this other copyright lawsuit against TikTok. I don’t love the firm’s filings, but I do like the firm’s cat-themed imagery.]

This case relates to 22 photos that users allegedly uploaded to TikTok. The plaintiff claims that it sent DMCA takedown notices, but allegedly the works didn’t come down.

Direct Infringement

Defendant contends Plaintiff has not and cannot allege any volitional conduct by TTI to support its direct copyright infringement claim. Plaintiff admits “a direct theory of liability has not been properly set forth in the FAC”

+5 points for the plaintiff firm’s candor, -10 points for bad drafting.

Vicarious Infringement

Plaintiff alleges TTI “has the right and ability to control the infringing acts of its users yet declined or failed to stop its users from engaging in its infringing activity.” As support, Plaintiff alleges it sent multiple DMCA takedown notices to TTI. Missing from these allegations are any details related to the contents of these notices, including when they were sent and how they identified the media that infringed the Work. Plaintiff’s assertion it sent multiple DMCA takedown notices to Defendant, alone, is insufficient to plead Defendant had sufficient knowledge to exercise the requisite control over the allegedly infringing users.

A lot to dislike here. First, the plaintiff uses the less-preferred variant of the vicarious infringement test from the Grokster opinion, which has cluttered up the considerations. Second, vicarious and contributory infringement doctrines have effectively merged if both are triggered by the same takedown notices. This is more of a 9th Circuit problem than a problem with this opinion, but it’s still a problem. At minimum, scienter has unambiguously crept into the traditionally strict-liability vicarious infringement test.

Contributory Infringement

Same pleading problems with the factual imprecisions about the DMCA takedown notices.

Developments Since This Ruling

The plaintiff filed a second amended complaint, and the parties had an unsuccessful mediation. Both parties have summary judgment motions pending. The judge said in September that he would rule on those motions without a hearing, but no word since.

An Observation

In a footnote, the court adds “The FAC contains typographical errors, whereby Plaintiff repeats certain paragraph numbers.” Oops. That sloppiness is in addition to the pleading defects of not properly alleging direct infringement and not providing adequate details about the DMCA takedown notices. In light of the Twitter ruling, this data might help form a hypothesis about the relative performances of the different law firms.

Michael Grecco Productions, Inc. v. Twitter, Inc., 2026 WL 917606 (C.D. Cal. March 31, 2026)

This case involves the same plaintiff and same judicial district (C.D. Cal.) as the TikTok lawsuit, but the differences include: different plaintiff’s counsel (One LLP and Blakey Law Group), different defense counsel (Willenken and Quinn Emanuel), different procedural stage (judgment on the pleadings instead of motion to dismiss), different judge, different time (1 year later), and different outcome (plaintiff’s claims survive the challenge).

According to the complaint, “Grecco sent DMCA takedown emails to Twitter for the copyright infringement of the alleged 111 infringed upon copyrighted materials….Twitter has not taken action as to the DMCA takedown requests pertaining to the 111 copyrighted materials.”

Direct Infringement

Twitter contends that it did not commit volitional acts as the infringing conduct was posted by third party users. The 2AC argues that Twitter actively and willfully engaged in the infringement by refusing to honor valid DMCA takedown requests pertaining to the infringing content submitted by Grecco.

Per the plaintiff, not taking any action qualifies as “actively and willfully engaging” in infringement? Really? Yet, remarkably, the plaintiff makes the sale on this argument:

the 2AC provides that Twitter was: (1) on notice of the alleged infringing material; and (2) Twitter failed to address the DMCA takedown requests and remove the material from its platform. The alleged failure to remove the alleged infringing material is within Twitter’s exercise of control, not third-party users. By pleading that Twitter allowed the alleged infringing material to remain on its platform and failed to respond to the DMCA takedown requests, Grecco has properly pleaded that Twitter engaged in the active display of the infringing material.

What does “active display” mean? The grammar reminds me of the Seinfeld finale.

Note how the court’s move gets around Cox v. Sony. This court says that Twitter’s failure to respond to a takedown notice constitutes DIRECT infringement because the takedown notice turns non-volitional conduct into volitional conduct. No contributory infringement required, which means Cox v. Sony doesn’t necessarily block this doctrinal move at all.

The court’s direct infringement doctrinal move shouldn’t work. I think this ruling diverges from the Ninth Circuit standards on online volition (and it clearly conflicts with the Second Circuit’s Cablevision’s ruling), but who knows because the Ninth Circuit has done a poor job articulating the standard. The judge distinguishes the VHT v. Zillow ruling because the defendant in that case honored the takedown notice, while here Twitter allegedly did not, and the court thinks that distinction matters to volitional conduct. I wonder if the Ninth Circuit will find this judge’s doctrinal contortions persuasive.

Note that Twitter could still theoretically defeat the direct infringement claim using the DMCA 512(c) safe harbor. However, if Twitter didn’t honor the takedown notices, then it should also be disqualified from 512(c).

Contributory Copyright Infringement

Although this court knew of the Cox ruling (more on that in a moment), the court applied the now-deprecated Gershwin scienter + material contribution test.

Unlike the TikTok case above, Grecco prepared the takedown notice details properly: “Grecco details the copyright material, the copyright registration information, and the DMCA takedown requests submission dates.” With adequate detail about the takedown notices before the court, “the Court finds that Grecco sufficiently alleged a simple measure, and thus material contribution under a claim for contributory copyright infringement. As the Court finds that Grecco has sufficiently pled actual knowledge and material contribution.”

For completeness, the court shuts down the inducement path: “the failure to remove does not speak to an objective to promote.”

But what about Cox v. Sony? In a footnote, the court says:

Grecco submitted numerous DMCA takedown requests, which included the copyright and infringing material information—placing Twitter on notice of the infringing activity. Twitter, however, took no action to remove the infringing materials. Grecco also alleges that Twitter’s acts of infringement were “willful.” As such, Cox is distinguishable from this matter.

The court surely had written most or all of this opinion before Cox came out, and the court sought the path of least resistance to issue the already-drafted opinion without rewriting it. But c’mon. In Cox, the plaintiffs submitted many DMCA notices, and Cox took no action. Perhaps the court is trying to draw a line between hosting and Internet access without actually saying so? With respect to the “willful” allegations, if failure to remove in response to a takedown notice is a willful infringement, then Cox was willful too. But the court doesn’t explain how Twitter was “willful” other than reciting Grecco’s bare assertion. Not helpful.

Vicarious Infringement

Grecco sufficiently pleads that Twitter had the right and ability to supervise the alleged infringing content through the DMCA takedown requests. Upon reviewing Grecco’s requests, Twitter could have removed the content from its platform

The 2AC asserts that Twitter has generated revenue through the increased traffic from the infringing content. And this is all that is needed at this stage. Grecco need not explain at this stage how the infringing content operates as a draw to consumers, but merely that this specific infringing content does.

As with the TikTok ruling, the vicarious infringement test has largely collapsed into the contributory (and now direct) infringement tests. What a mess. The Ninth Circuit, and ultimately the Supreme Court, needs to clean up these tests.

Statute of Limitations

The court applies a 3-year limitation from date of posting (rather than from date of last download, which other courts have applied), which screens out 38 of the 111 works at issue.

Implications

I could see the Ninth Circuit reversing each and every part of the Twitter decision, i.e., saying there is no direct, contributory, or vicarious infringement, and no SOL problem. At minimum, this ruling shows how lower courts are struggling to consistently apply the infringement tests to online hosts.

The Twitter ruling also provides an early indicator that Cox may not be as much of a defense win as it appeared. Lower courts can, and likely will, make doctrinal countermoves to bail plaintiffs out.

The Twitter ruling might also illustrate how the DMCA safe harbors have converged with the underlying doctrinal tests. This opinion suggests that failing to follow the DMCA takedown procedures virtually ensures liability on the prima facie elements too, thus collapsing the prima facie elements and the DMCA safe harbor elements.

Judge Maame Ewusi-Mensah Frimpong wrote the Twitter opinion. I didn’t see anything in her background that explains why she bent over backwards for the plaintiff here.

More Blog Posts About Michael Grecco

• What’s the Difference Between Copyright Takedown Notices and Spam?–Michael Grecco v. Fandom
• Blogger’s Photo Republication Isn’t Fair Use–Golden v. Grecco
• Reminder: Cutting-and-Pasting Photos from the Internet Is Hazardous to Your Legal Health–Grecco v. Valuewalk

The post Will Lower Courts Find Ways Around Cox v. Sony? You Betcha appeared first on Technology & Marketing Law Blog.

* * *

In Cox Communications, Inc. v. Sony Music Entertainment, an ill-considered 2026 decision that will serve the interests neither of copyright owners nor of copyright users—nor, for that matter, society’s interest in a balanced copyright system—the United States Supreme Court took an axe to contributory liability, ruling that an internet service provider serving approximately six million subscribers was not contributorily liable for its subscribers’ copyright infringements merely because it had provided “a service to the general public with knowledge that it will be used by some to infringe copyrights.” According to the Court’s opinion, written by Justice Clarence Thomas, “[t]he provider of a service is contributorily liable for a user’s infringement if it intended its service to be used for infringement.” To establish such intent, “a copyright owner must show one of two things. First, it can show that a party affirmatively ‘induc[ed]’ the infringement. Or, second, it can show that the party sold a service tailored to infringement.”

Image produced by ChatGPT March 2026

“Inducement” has an established place in copyright jurisprudence. But the concept, “tailored to infringement,” appears nowhere in the Copyright Act or in copyright case law. The late Justice Ruth Ginsburg’s concurring opinion in Metro-Goldwyn-Mayer Studios Inc. v Grokster Ltd., to which Justice Thomas ascribed the term, in fact nowhere included those words. Justice Ginsburg did employ the terms “substantial” or “commerciallv significant” noninfringing uses, referring to the concept that had become a central determinant for withholding contributory liability for providing goods or services since the Court first adopted it in Sony Corp. of America v. Universal City Studios, Inc. Justice Thomas’s treatment of the two terms as equivalent—“[a] service is tailored to infringement if it is ‘not capable of “substantial or commercially significant”’ non-infringing uses—overlooks not only that the first term is materially narrower than the second, but also that Sony borrowed it from the patent statute with the distinct object of ensuring that consumers not be required to pay monopoly tribute for otherwise unprotected goods or equipment. If selling salt tablets that can be used in a patented salt dispenser should not be actionable because the tablets have a substantial noninfringing use, so sales of video recording devices employed to copy copyrighted works should not be actionable if the devices possessed one or more substantial noninfringing uses, such as time-shifting recorded programs for later viewing.

By assimilating “substantial noninfringing use,” an objective, competition policy-based measure of liability, into a necessarily subjective intent-based measure, Cox seems likely to destabilize entrepreneurial planning for the introduction of new devices and services for exploiting copyrighted works. To be sure, service providers may see in the opinion a license to deliver services to subscribers–even though they know that many and even most of the uses may infringe–so long as they don’t promote or specifically design their services for infringement. In fact, if the Court believed that its narrowing of contributory liability to inducement by words or by device or service design, would enhance marketplace certainty, it might not have reflected carefully enough on the flimsy, indeed passive, evidence that it accepted in Grokster as evidence of inducement: that the defendants aimed “to satisfy a known source of demand for copyright infringement”; that defendants failed “to develop filtering tools” to “diminish the infringing activity using their software”; and “the commercial sense of their enterprise turns on high volume use.” Cox offers small solace to service providers if an act of omission such as failure to install filtering tools will subject them to liability.

The Court’s attempt in Cox to circumscribe contributory liability on the internet is understandable. The prospect of an aggregation of tens of thousands statutory damage awards—the award against Cox was $1 billion—can be daunting, indeed devastating, for even the most well-heeled service provider. The correct solution, however, would be for Congress to revise the Act’s statutory damages provision, and at least one bill has been introduced to that end. The prospect of secondary liability for generative AI platforms for the conduct of their users in prompting texts, sounds and images similar to copyrighted works may also have figured in the Court’s attempt at caution. But the question of secondary liability—indeed, of direct infringement liability—for these AI activities has not yet been directly addressed by the courts, or by the Congress, and for the Supreme Court to legislate on the question without a trial record or statutory text before it would be premature.

The terrain of secondary copyright liability generally has turned treacherous since the introduction in 1998 of the internet safe harbors, for the expectations of service providers and their subscribers have over the ensuing years been shaped less by secondary liability doctrines than by the mechanisms of the safe harbors. Lawsuits defining the boundaries of liability on the internet have been displaced in the vast number of potential conflicts by compliance with the safe harbors, including by automated means such as YouTube’s immensely successful Content ID system. If there has been litigation over service provider liability, it has been mainly to define the terms of the safe harbors and not to measure the reach of secondary liability doctrines. As proposed elsewhere in this treatise, the solution to this legal vacuum is for courts to populate it with the norms that business operations under the safe harbors have come to define as reasonable behavior among copyright owners and service providers alike. Sadly, the Court in Cox ignored this possibility. Indeed, as Justice Sonia Sotomayor wisely observed of the safe harbors in her concurrence in Cox, “[i]mportantly, Congress did not provide that ISPs could never be secondarily liable for copyright infringement. Instead, it struck a balance by creating incentives for ISPs to take reasonable steps to prevent copyright infringement on their networks, while also assuring ISPs that they do not need to take on the impossible task of responding to every instance of infringement on their networks….The majority’s new rule completely upends that balance and consigns the safe harbor provision to obsolescence.”

The post Prof. Goldstein on Cox v. Sony (Excerpt from His Treatise) appeared first on Technology & Marketing Law Blog.

Take-Two sued PlayerAuctions for IP infringement. Some background on the lawsuit. PlayerAuctions brought a 512(f) counterclaim. The court rejects Take-Two’s motion to dismiss the 512(f) counterclaim:

PlayerAuctions alleges that Take-Two lacked a “subjective good faith belief” that the identified listings infringed Take-Two’s copyrights because Take-Two failed to consider whether the listings qualified as fair use prior to sending the Takedown Notice.  The Takedown Notice does not reference fair use or indicate that Take-Two considered the doctrine. Further, PlayerAuctions alleges that Take-Two has previously considered material similar to that in the listings to be fair use. Thus, PlayerAuctions asserts, had Take-Two considered fair use, it would have recognized that many of the identified listings constituted fair use.

These allegations, taken as true at the pleading stage, are sufficient to establish that Take-Two did not consider fair use before sending the Takedown Notice. If Take-Two did not consider fair use, it could not possibly have formed a good faith belief that the listings were unauthorized by the law, because “fair use is ‘authorized by the law.’ ” Lenz, 815 F.3d at 1153. Thus, PlayerAuctions plausibly alleges that Take-Two lacked a subjective good faith belief that the listings were infringing before sending the Takedown Notice, which is adequate to state a claim under § 512(f).

It’s a nonsequitur for the court to treat the absence of a fair use reference in the takedown notice as prima facie evidence of subjective bad-faith. DMCA’s 512(c)(3) does not require a takedown notice sender to reference anything about fair use, and it would be completely consistent with the governing Rossi caselaw for a takedown notice sender to consider fair use privately and not mention fair use in its takedown notice. Perhaps the court will reach this point at summary judgment, after Take-Two has a chance to explain its decisions, including what it did to evaluate fair use in these circumstances.

For now, the obvious implication is that if you want to reduce the chances of a 512(f) plaintiff surviving a motion to dismiss based on Lenz, the takedown notice should include a statement that the sender considered fair use for the targeted items and concluded that it did not apply.

Evaluation of fair use never happens before sending robo-takedown notices, so this ruling seems to suggest that the robo-notices are 512(f)-bait for that reason. Given that courts have tolerated robo-notices for many years, this court’s approach is either an outlier or a warning sign that courts are becoming intolerant of robo-notices.

The kicker is that the court has already said that Take-Two’s claims against PlayerAuctions have survived a motion to dismiss, so Take-Two suggested that ruling indicates its claims are valid enough to demonstrate Take-Two’s subjective good faith.  The court responds “meh,” pointing to the pleading burdens for a motion to dismiss.

Case Citation: Take-Two Interactive Software, Inc. v. PlayerAuctions, Inc., 2026 WL 856666 (C.D. Cal. March 26, 2026). The initial complaint.

BONUS: Art Akiane v. Art & Soulworks LLC, 2026 WL 893344 (N.D. Ill. March 31, 2026). 512(f) shows up in a dispute over ownership: “the Defendants allege that Art Akiane’s takedown letters were relied on by its customers to remove, return, and request a refund on purchased inventory. The Defendants only point to Carpentree’s customers as those who returned Akiane-related inventory to Carpentree due to receiving a takedown notice. But the alleged removal of online Akiane-related material by Carpentree’s customers does not amount to evidence of injury incurred by either of the Defendants. So, the Defendants have not shown a genuine dispute on whether they were harmed by Art Akiane’s takedown notices. Without evidence of harm, the Defendants cannot satisfy the damages requirement of Section 512(f).”

Prior Posts on Section 512(f)

* Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices?
* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post Do DMCA Takedown Notices Need to Expressly Refer to the Lack of Fair Use?–Take-Two v. PlayerAuctions appeared first on Technology & Marketing Law Blog.

The decision reaches the right outcome. It has been unconscionable that copyright owners keep trying to hold Internet access providers liable for the acts of their subscribers. I hope this decision puts an end to that litigation genre.

Thomas’ opinion potentially makes major changes to venerable common law doctrines. It seemingly overrides the decades-old Gershwin standards for contributory copyright infringement and instead offers two ways for copyright owners to establish contributory copyright infringement: (1) inducement, or (2) the service is “tailored” to infringement. The “tailored to infringement” standard is brand-new; Thomas grabbed it from Ginsburg’s non-dispositive concurrence in the Grokster case. Because “tailored to infringement” has never been the governing standard before, there will be substantial confusion in the lower courts trying to figure out how to apply it.

Thomas’ opinion defines “tailored to infringement” as “not capable of substantial or commercially significant noninfringing uses.” This resurrects the Sony v. Universal standard for contributory infringement from over 40 years ago, which largely got put on hold after the Grokster case 20 years ago. Because it’s not been well-explored since 2006, we’re not sure what this phrase means in the modern Internet age. On balance, the old Sony standard should favor future defendants, but copyright owners will invest a lot of money to try to water it down and undermine it.

I do note the irony that Sony created the defense-favorable legal standard in 1984 that is now being cited against it in 2026. As the Bible verse goes, “You reap what you sow.”

My blog post on the 2024 Fourth Circuit opinion (now overruled).

The post Quick Comments on the SCOTUS Cox v. Sony Ruling appeared first on Technology & Marketing Law Blog.

Executive Lens LLC v. Rapkin, 2026 WL 776965 (N.D. Cal. March 19, 2026)

“Plaintiff is the sole owner of the copyrights in the videos published on the YouTube channels ‘Denver Metro Audits’ and ‘Denver Metro Audits 2.0.'” This is my second time blogging about those channels.

A pseudonymous user, “The Exposer,” posted at least 31 videos to YouTube allegedly containing copyrighted material from the plaintiff. (The “Exposer” moniker made me think of the stage names “The Crusher” and “The Masked Terror” from Bunny Hugged).

The plaintiff sent takedown notices targeting 27 of The Exposer’s videos. YouTube removed 17 videos. (The Exposer made 13 of the 14 other videos private). Allegedly, “At least eight of the 17 videos contained no commentary of any kind.” Rapkin, representing The Exposer, filed counternotifications for the 17 removed videos, allegedly without actually reviewing the videos. The plaintiff filed a copyright infringement lawsuit to block YouTube’s reinstatement of the counternoticed videos. The plaintiff also claims Rapkin’s counternotices violated 512(f). The court denied Rapkin’s motion to dismiss.

Damages

Rapkin argued that the plaintiff didn’t suffer any damages if YouTube never reinstated the videos. The court says the threat of reinstatement is good enough to support 512(f) damages. The court distinguishes Amaretto v. Ozimals, the old virtual horses v. bunnies case:

Amaretto limited liability to misrepresentations in a takedown notice that led to an actual takedown of a video, not to misrepresentations in a counter notification that led to reinstatement. This distinction is important because takedown notices prompt the service provider to “expeditiously … remove” the material, while counter notifications force the user into time-sensitive litigation to prevent reinstatement

Is there really a material difference between takedown notices and counternotices? Takedown notices have major implications. The legal incentives impel services to remove the content, the removal occurs without any warning to the uploader, and the uploader may have to go to court to rectify the removal. (Services aren’t legally compelled to honor 512(g) counternotifications). So both takedown notices and counternotices are powerful legal tools that (by design) cause the disposition of important legal rights extrajudicially. It would have been helpful for the court to articulate a more detailed explanation about why the shifted leverage from a counternotice is more significant than the shifted leverage from the initial takedown notice, and why that should matter to the 512(f) analysis. This might be a good student paper topic.

Knowing Misrepresentation

512(f) requires that the takedown/counter notice sender has “knowledge” that the notice contains a material misrepresentation. For over 20 years, courts have applied that scienter standard exactingly. Per Rossi, actual knowledge was required, and it was measured subjectively. Increasingly, courts have been open to loosening that subjective standard to include “willful blindness.” That leads to passages like this:

Plaintiff alleges that Rapkin withheld the Exposer’s identity and that the Exposer “publicly boasted about hiding behind Attorney Rapkin and a purported corporate entity to evade accountability, taunting Plaintiff that his identity would never be discovered and he therefore could not be held liable.” Drawing all reasonable inferences in favor of Plaintiff, these allegations support a reasonable inference that Rapkin knew that the Exposer’s subject videos did not contain commentary and was therefore not subject to fair use. Further, Plaintiff sufficiently alleged that Rapkin took deliberate actions to avoid confirming that the subject videos did not contain commentary by not reviewing the videos.

And this is how this 512(f) case survives a motion to dismiss.

Yet, copyright owners send enormous volumes of robo-takedown notices all the time without actually reviewing the subject works, and Rossi says their ignorance is not a problem at all. Did the court bend the scienter standard because it was a counternotification?

The court doesn’t address the problems with potentially imposing potential 512(f) liability on the uploader’s attorney instead of exclusively on the uploader. Among other things, this potentially turns attorney-client communications into discoverable evidence. On the other hand, anyone sending a takedown or putback notice should be doing their homework before submitting the notice! If collapsing the identity of the notice sender means that more copyright enforcement agents/lawyers fear their personal legal liability when zinging 512(c)(3) takedown notices around the Internet on behalf of clients, so be it.

And yet, as I wrote about in my first-hand interactions with Scribd’s defective DMCA procedures, it’s stressful to submit a 512(g) putback notice. In doing so, the submitter must accept jurisdiction in a potentially unfriendly venue, dares the takedown notice sender to initiate a copyright infringement lawsuit (to veto reinstatement), and invites a 512(f) lawsuit–per this case, potentially with a higher risk of 512(f) liability than the initial takedown notice sender faced. I was so confident in my Scribd upload that I submitted the 512(g) putback notice anyway. However, most people who understand the risks of putback notices might rationally acquiesce to bogus takedowns to reduce their legal exposure. This is another example of how 512(c)’s notice-and-takedown mechanisms may not be properly fine-tuned to reflect the power dynamics.

Doeman Music Group Media and Photography LLC v. George, 2026 WL 789495 (S.D.N.Y. Jan. 8, 2026). The complaint.

This is a default judgment, which is the primary way that plaintiffs win 512(f) cases. Even so, this plaintiff blows the layup and gets a small fraction of its requested relief.

[Note: this is a magistrate judge’s recommendation, but because the plaintiff delayed serving it on the defendant, the supervising judge has not yet reviewed it.]

I previously summarized this case:

The case involves George’s 3 second vocal contribution to a song. George was paid for her contribution, got named in the song credits, and allegedly operated under the direction of the song creator (but apparently without a license?). George later demanded that her name be removed from the credits. When rebuffed, George sent takedown notices to various services, claiming copyright ownership of the song. (Wow, this is a deja vu of Innocence of Muslims). The record label sued George for 512(f).

In my prior post, I raised questions about whether George ever got properly served. Inadequate service may be a contributing factor to the default judgment.

Much of the most recent opinion explains how the plaintiff made unsupported evidentiary claims about its damages. The court awards $360.63 of lost streaming revenue from the takedown, calculated as:

(Plaintiff’s total [Spotify] streams to date on a comparable song less Scary Movie’s total streams to date) * (an estimated $0.0018849628 per stream) = $160.63. Plaintiff said that if one considers other streaming platforms, the additional lost streaming revenue for Scary Movie would be $200.00

The calculation is precise to the penny on the lost Spotify revenues from the song, even though the formula is based on streams for a “comparable song” (whatever that means). Yet, the other platforms’ lost revenue is just a round $200 with no supporting data at all. The court lets that obvious discrepancy go.

[The calculation that Spotify pays $0.0018849628 per stream seemed a little low and obviously implied faux precise (accurate to 10 digits????)].

The plaintiff also sought lost live performance bookings ($20k) and his costs of reuploading the songs (allegedly 250 hours at $130/hr). The court refuses both requests because they conflate the identity between the artist and the label.

The court awards the following costs:

• $2,500.00 in out-of-pocket fees paid to DMCA counsel
• $400.00 in pre-filing services in connection with George’s Take-Down ($150.00 “for assistance with effectuating a counternotice” to George’s Take-Downs and $250.00 to consult “another private attorney” about George’s Take-Downs <== both of these sounded a little fishy)
• $1,202.00 in taxable costs ($800 process server and $402 complaint filing fee)

The plaintiff then requested over $57k of attorneys’ fees: “Grimm billed 52.4 hours on this case at an hourly rate of $450; Keenen billed 72.9 hours of work on this case at an hourly rate of $400.” The court haircut the billable rates to $400 for Grimm and $300 for Keenan and haircut the hours to 42.5 total to exclude time spent working on other defendants.

In total, the court awards about $19k: $14.6k of attorneys’ fees, $4.1k of costs, and the remainder the lost streaming revenues. Given that the plaintiff made an unopposed ask of about $120k of damages and attorneys’ fees, getting only about 1/6 that amount probably feels a little disappointing and embarrassing. And it’s also likely the $19k is uncollectible. Still, a 512(f) damages award of any amount, even in a default judgment, is a rare outcome, so…good job I guess?

BONUS: Pandvil LLC v. Pino, 2026 WL 820817 (D. Ariz. March 25, 2026). The defendant used 512(c)(3) takedown notices to (improperly) remove a lucrative Fortnite island. In response to the 512(f) claim, the court awards $501k in damages plus $10k fees and costs. This would be a big deal if it weren’t a default judgment where the court accepted the plaintiff’s arguments without challenge.

BONUS 2: Charles F. Wachendorfer Consulting Group LLC v. Think2Perform Exam Services Co., 2026 WL 836902 (D. Minn. March 26, 2026). “Courts have held that tortious-interference claims predicated solely on false DMCA takedown notices are preempted by the DMCA….the heart of Wachendorfer’s claim for tortious interference with economic advantage is the false takedown notice. If the notice has caused injury to Wachendorfer—or if Wachendorfer suffers injury in the future caused by the notice—then Wachendorfer can seek damages and other remedies under the DMCA.”

Prior Posts on Section 512(f)

* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment

The post Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices? appeared first on Technology & Marketing Law Blog.

Rapid Relief Team (RRT), the charitable arm of the Plymouth Brethren Christian Church (PBCC), has filed a copyright infringement lawsuit in the Northern District of California against Cheryl Bawtinheimer, a former church member turned vocal critic. The alleged offense: her YouTube channels “Get a Life Podcast – Ex-Cult Conversations” and “Rapid Relief Team – Exposed” showed footage of RRT’s own website and marketing materials, which happened to include the charity’s “Cookie Kookaburra Bird” logo.

Bawtinheimer wasn’t selling the logo on t-shirts or reproducing it for sale. She was using it as a backdrop while she and other ex-PBCC members talked about their experiences with the church. The logo was simply… there, as she and her guests criticized the text around it. Here’s one example of how Bawtinheimer’s videos “reproduced” RRT’s logo:

Bawtinheimer is a former member and prominent critic of PBCC (f/k/a Exclusive Brethren). PBCC’s global headquarter is in Australia, but its multibillion-dollar empire claims over 55,000 members across the world. It has been the subject of intense media scrutiny for its alleged cult-like operations, psychological manipulation, illegal surveillance, and shunning practices of former members. It has also been accused of burying claims against church elders for sexual abuse of minors—including sexual abuse accusations made by Bawtinheimer herself. According to RRT’s Complaint, RRT was founded by PBCC as a “global charitable relief organization offering compassionate support to communities impacted by natural disasters and humanitarian crises.”

After exiting the church, Bawtinheimer established her YouTube channels featuring “conversations with former members of the PBCC” to “peel back the hidden layers within these cults and reveal trauma that occurs behind closed doors,” and to “compile and analyze videos, events, and public campaigns run by the RRT, exposing how they function as a tool . . . for the PBCC.”  It is within these videos that Bawtinheimer featured RRT’s website and stylized logo for which she is now being sued. This was after RRT filed DMCA takedown notices to have those videos removed from YouTube, and Bawtinheimer filed counter notifications to have them reinstated.

So, what is going on here? Does RRT and PBCC, a $22 billion organization, really care that their logo is in the background of videos on a YouTube channel with fewer than 2,000 subscribers? Or is this about something else? (Spoiler alert! It’s about something else.)

There’s a name for what PBCC is doing to Cheryl Bawtinheimer: it’s called “copyright silencing.” As I wrote in Copyright Silencing and Weaponizing Copyright, copyright silencing is the practice of using copyrights to silence criticism, censor speech, and prevent the dissemination of facts. Unlike typical copyright claims, copyright silencing doesn’t involve copyright owners asserting copyright to protect their economic or market interests in their copyrighted works. The sole purpose of copyright silencing is to weaponize copyright to silence criticism, bury facts, suppress and eliminate public discourse and dissemination of information.

This abusive use of copyright law is, unfortunately, not uncommon and can often fly under the radar because accused infringers feel pressured to voluntarily remove their works, or Internet platforms like YouTube take down works in response to copyright owners’ DMCA notices. It is also difficult to defend in litigation. The copyright misuse defense doesn’t typically apply to this form of abuse and there is currently no federal anti-SLAPP law. While many of the accused infringing uses would be considered noninfringing fair uses, litigation is expensive, which favors these well-funded organizations: by the time an accused infringer has the opportunity to raise fair use they could already be out of pocket too much to continue their defense.

These tactics have been employed by copyright owners, including religious organizations, to successfully silence critics—even when the accused uses would be considered noninfringing fair uses. These religious organizations, it turns out, have found a secular weapon that works just as well as any doctrine: copyright. The Church of Scientology, Jehovah’s Witnesses, and PBCC have each used it to successfully bury criticism.

The Church of Scientology has a long and successful history of silencing critics, former members, and news media in federal courts for copyright infringement for publishing “confidential” church documents online—despite the fact that the purpose of publication was for criticism and some of those documents were obtained from public court files. More recently, the Church has used DMCA takedown notices to remove websites or videos (including news clips) critical of the Church.

In 2020, Truth & Transparency (T&T), a “nonprofit newsroom dedicated to religious accountability through impact journalism,” was forced to settle a copyright infringement suit with Watch Tower, the governing body of the Jehovah’s Witnesses. T&T operated the FaithLeaks website, described as a “religious document archival project that collects documents from whistleblowers in religious communities.” The website published internal Watch Tower documents and videos, including documents on the Jehovah’s Witnesses’ mishandling of sexual abuse claims and 74 internal annual convention “propaganda” videos. Watch Tower sued for copyright infringement, ultimately forcing T&T (due to lack of funds to continue litigation) to agree to remove all documents and videos, agree to never post any additional Watch Tower Materials, and pay $15,000 in damages. The FaithLeaks website has not posted anything new since 2019.

PBCC also has a successful history of silencing its critics through copyright claims. It has filed (sometimes through affiliated entities) a number of copyright claims against former members who reproduced their materials in order to criticize them. For instance, it sued former member Richard Wyman for copyright infringement (and defamation) in the District Court of Minnesota when Wyman published the church’s religious writings and meeting minutes. After 16 months of litigation, the parties settled.

It sued Tim Twinam, a former church member, when he launched a website to reconnect other former members who left the church and were subjected to the church’s “doctrine of separation.” PBCC filed suit against Twinam and his wife in the District Court of Vermont for copyright infringement for uploading church sermons and letters. After three years and six months of litigation in federal court, the parties settled with the Twinams signing a consent order and permanent injunction.

It also filed copyright claims against Ian McKay, a former lecturer at the University of Glasgow, for publishing and quoting from church documents, including the church’s list of places that members were not permitted to go: the movie theater, football and cricket matches, bars, restaurants, hotels, fireworks displays, swimming pools, universities, zoos—basically any place that might bring joy. As a former member of the church, McKay’s goal was to highlight the church’s excessive control over its members. McKay spent over £50,000 ($65,000+) defending his right to say so. He was forced to settle.

Given its successful track record, it’s no surprise PBCC is running the same play against Cheryl Bawtinheimer. But unlike prior cases, Bawtinheimer didn’t reproduce any of the church’s texts, lists, or religious writings—works that fit more comfortably within the domain of copyright. Her videos just showed a portion of RRT’s website that happened to include RRT’s logo. Logos are usually governed by trademark law but can be protected by copyright if they embody enough creative authorship. So, in September 2025, RRT went through the trouble of purchasing a copyright assignment from the logo’s creators before immediately filing a YouTube takedown request the next month. The logo had one job. When that didn’t work, they sued her in federal court.

[Note: the logo isn’t even registered in the U.S. Copyright Office, which is typically required before bringing an infringement claim in federal court. RRT appears to be relying on its foreign rights to bring suit, which allows them to seek an injunction and defendant’s profits, but no statutory damages or attorneys’ fees. But this works just fine for RRT, because RRT’s interests aren’t financial. Indeed, in its Complaint, RRT seeks to enjoin Bawtinheimer and demands the “destruction” and “recall” of all of the videos that include the logo.]

To use the age-old abductive reasoning test: if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. RRT’s copyright lawsuit looks, swims, and quacks like copyright silencing. The question is whether anyone will hold them accountable.

Copyright silencers have been able to get away with abusive practices because most people weren’t paying attention and because of the imbalance of power between the parties. The law appears to provide some options for victims of these tactics: 17 U.S.C. § 505 allows courts to “award a reasonable attorney’s fee to the prevailing party,” including defendants who prevail on fair use. The Ninth Circuit ruled in 2015 that copyright owners must consider fair use before filing DMCA takedowns; failing to do so is a material misrepresentation which can mean damages and attorneys’ fees under § 512(f). And then there’s Rule 11, which prohibits attorneys from filing claims for an “improper purpose.” Using copyright to silence a survivor should qualify. The cruel joke of copyright silencing is that even though the law technically offers remedies, it can be difficult for victims to succeed under these options, and accessing them requires surviving litigation long enough to get there—which is precisely what a $22 billion organization with an army of lawyers is betting you can’t do.

Case Citation: Rapid Relief Team (RRT) Limited (RRT) v. Cheryl Bawtenheimer, Docket No. 4:25-cv-10864 (N.D. Cal. complaint filed Dec 19, 2025). The PacerMonitor page.

The post A Religious Organization is Suing its Critics, and the Weapon of Choice is Copyright—RRT v. Cheryl Bawtinheimer (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

In 2024, Photobucket emailed its legacy users, asking if they wanted Photobucket to keep or delete their accounts. Users who clicked on the email’s links–included to delete their accounts–were presented with a new TOS formation process that included a consent to use the photos to derive users’ biometric information for AI purposes. “If users did not opt out of the Biometric Policy within 45 days of July 22, 2024, Photobucket claims the right to sell, lease, trade, or otherwise profit from the users’ biometric information.” (Photobucket claims it hasn’t actually pursued this AI option). The new TOS also contained an arbitration provision that wasn’t in some prior TOS versions. Photobucket invokes the arbitration clause against the plaintiffs’ lawsuit.

Article III Standing. The court says the plaintiffs only have Article III standing for equitable relief, not damages. This narrows the case substantially.

Pierce

Pierce agreed to Photobucket’s 2008 TOS and last logged into Photobucket in 2014. The 2008 TOS informed Pierce that his “continued use” of Photobucket would constitute acceptance to any TOS modifications. Since he didn’t use the site after 2014, he didn’t assent-by-use to the 2024 TOS:

a reasonable person would not understand his failure to take his photos off of
Photobucket, after not logging in for nearly ten years, to constitute “continued use” and thus acceptance of any revised terms.

In other words, a user’s maintenance of a legacy account isn’t “continued use” of the service.

Ms. Hughes

Ms. Hughes agreed to Photobucket’s 2006 TOS and last logged into Photobucket no later than 2011. The 2006 TOS said:

By using the Services you agree to the Terms of Service set forth below as they may be updated from time to time by Photobucket.com, Inc. (“Photobucket.com”). Photobucket.com may modify or terminate the Services from time to time, for any reason, and without notice, including the right to terminate with or without notice, without liability to you, any other user or any third party, provided that when Photobucket.com does so, it will update these Terms of Service. You are advised to periodically check the website for changes in the Terms of Service.

The court says this TOS “told Ms. Hughes that she was “advised to periodically check the website for changes in the Terms of Service.” The 2006 Terms “necessarily inform[ ] how a reasonably prudent user would interact” with Photobucket’s website.”

But…the TOS applicable to Pierce said “It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.” The court disregarded that language for Pierce. Can you find a difference between the disclosures to Pierce and Hughes? Beyond the (seemingly immaterial) language differences, the court’s different conclusions might be explained by (1) Pierce was governed by Colorado law, Hughes by CA law; or (2) Hughes admitted getting emails telling her about the coming changes, though she didn’t pay attention to them. I don’t find those distinctions persuasive, so I can’t meaningfully distinguish Pierce’s situation from Ms. Hughes’.

The court says Hughes is bound to the 2024 TOS:

the 2006 Terms told Ms. Hughes that she had an obligation to periodically check Photobucket’s website for updates to the Terms. The 2024 Terms and arbitration provision constitute an update to the Terms that Ms. Hughes had an obligation to stay apprised of. Ms. Hughes assented to the 2024 Terms because they informed her that failure to opt out within 45 days of the effective date would constitute acceptance, and Ms. Hughes did not opt out

Whoa. The court is saying that even though Hughes functionally abandoned Photobucket in 2011, a “reasonably prudent user” would have kept checking Photobucket’s TOS 13 years later just in case the terms had changed. Wild.

Because Ms. Hughes “agreed” to the 2024 TOS, she also “agreed” to its jury trial waiver.

However, the arbitration clause excludes IP claims. The plaintiffs alleged 1202(b) claims, which the court says are IP claims and thus not covered by the arbitration provision. This claim stays in court.

Cumming

The parties can’t agree when Cumming created her Photobucket account or when she last used it, but everyone agrees that she agreed to the 2013 TOS and didn’t use the site later than 2013. That TOS version said “so long as you’ve used the Site after the change, regardless of any separate notice, you agree to the current posted version of the Terms.” Similar to the court’s discussion of Pierce, the court says “a reasonable person in Ms. Cumming’s position would not understand her failure to take photos off of Photobucket to mean that she “used” Photobucket after 2010 or 2013 and thus assented to the 2024 Terms.”

Mr. Hughes

He didn’t have a Photobucket account, but Ms. Hughes uploaded photos of him. The court says he’s not a third-party beneficiary of any TOS and not bound by the arbitration clause.

Court Stay

The court stays the litigation until after the arbitration, even though the court held that 3 of the 4 named plaintiffs were not bound by the arbitration and the fourth plaintiff had a claim not subject to arbitration. Because the court will not be bound by the arbitrator’s decisions for the non-arbitrated plaintiffs and claims, I didn’t understand why the court held everything else up. A slightly lucky break for Photobucket, because it avoids the cost of defending the litigation and arbitration simultaneously.

Implications

Here’s where things stand when the dust settled:

• damages are out of the case
• part of one plaintiff’s case is sent to arbitration
• when that’s complete, the court will address the remainder of that plaintiff’s case plus the other three plaintiffs’ cases

A messy outcome…perhaps messy enough to motivate the parties to settle? Without the availability of damages, this case became less interesting to the plaintiffs. Alternatively, I could also see the plaintiffs appealing this ruling.

Though Photobucket nominally got the outcome it wanted (the case sent to arbitration), it does not come out of this ruling looking very good. Some of the lowlights:

• its inital TOS amendment provisions sucked. It had various versions of “you need to come back to the site to check for possibly amended terms,” which has rarely fared well in court. Frankly, it’s shocking to see the judge find this “keep checking the TOS 13 years later” provision worked against Ms. Hughes. I don’t think that’s what a reasonable consumer would do. (As usual, the court cited no empirical basis for its assessment of what a reasonable consumer would do or think).
• the fact that Photobucket’s TOS amendment language kept changing over time. The language differences ensure more litigation work when it’s challenged.
• the fact that Photobucket kept changing its governing law clause. Another decision that increased its defense costs and the risk of inconsistent outcomes.
• the fact that Photobucket couldn’t definitively establish the dates of the users’ account creation or usage.
• its 2017 implosion. How did it misjudge the market so badly?
• its 2024 pivot to potentially engage in AI mining. I guess if you’ve already killed your business, why not try to salvage what’s left of the carcass?
• the attempt to bind legacy users via a TOS that users had to click through even if they wanted to exit Photobucket. Gauche.
• the arbitration provision’s exclusion for IP. Plaintiffs are weaponizing 1202, so IP carveouts have become dangerous. Reminder: every part of the arbitration provision should be carefully vetted for potential plaintiff weaponization.

The result was a messy outcome with different plaintiffs for getting different outcomes. Not what Photobucket was aiming for.

The obvious question: was there a better way for Photobucket to force all legacy users onto its new AI-friendly terms? This judge seemed to believe that the right incantation would let Photobucket put the onus on users to check for TOS amendments, but most judges won’t permit this. Could Photobucket have forced users to the new terms through its emailed notifications? The Ninth Circuit just permitted this, so maybe? The reality is that it’s difficult or impossible to universally bind all legacy users to new terms if they aren’t coming back to the website. I don’t have any clever hacks or tricks to work around this.

Case Citation: Pierce v. Photobucket Inc., 2026 WL 672764 (D. Colo. March 10, 2026). CourtListener page.

Other posts about Photobucket

• Photobucket Qualifies for the 512(c) Safe Harbor (Again)–Wolk v. Kodak
• Photo Hosting Site Gets DMCA 512 Safe Harbor–Wolk v. Photobucket

The post Photobucket’s Attempted TOS Amendment Mostly Fails–Pierce v. Photobucket appeared first on Technology & Marketing Law Blog.

However, the defendants challenged the copyright registrations, saying they incorporated third-party works. The plaintiff claimed it had the copyright owner’s permission to include those images in its works [though I didn’t see any indication that it was an exclusive license required to enforce them…? this was unclear], but the defendants claimed that the plaintiff’s evidence and timeline didn’t cohere. The court initially sided with the plaintiff, but the plaintiff later voluntarily dismissed the case entirely.

The defendants sought damages out of the bond supporting the TRO. The court says “Langmi does not dispute that Defendants were wrongfully enjoined or restrained, nor does it identify any reasons for requiring Langmi not to pay in this case,” which seems pretty dispositive.

Nevertheless, the court becomes a stickler about the defendants’ arguments on various procedural grounds, so the judge makes a series of judgment calls against the defendant and concludes that the plaintiff did not litigate in bad faith. As a result, the court limits the defendants to the $10k bond–even though the defendants showed $47k of lost profits while the TRO was in effect. Raising more procedural objections, the court also rejected the defendants’ requests for attorneys’ fees due to the plaintiff’s litigation misconduct. I imagine the defendants could request a 505 attorneys’ fee shift, but I’m skeptical this judge would grant that either given its discretionary nature.

This case highlights some common aspects of SAD Scheme cases:

• Although the SAD Scheme is pitched as a tool against Chinese defendants, increasingly we are seeing Chinese plaintiffs embrace the SAD Scheme. I guess the Chinese are learning all of the wrong lessons about how the US legal system works.
• This court set too low a bond. I’m not aware of scientific guidance about how courts should set appropriate bond levels, so this could be an area that would benefit from more academic rigor. But because the court didn’t properly structure the bond initially, it left the defendants with uncompensated damages.
• SAD Scheme plaintiffs often back down when defendants fight back. The plaintiff dropped from 36 to 8 defendants, and then, when challenged further, the plaintiff dropped the case entirely. This plaintiff pliability is often a sign that the plaintiff assumed they would get away with doing inadequate homework (as this defendant did, getting the TRO initially) because judges won’t spot all of the holes in the plaintiffs’ cases.
• Judges all too often hold defendants to stricter procedural standards than they hold plaintiffs. It seems like SAD Scheme plaintiffs can say whatever they want to get a TRO and some judges shrug their shoulders about the multitudinous corner-cutting along the way. But when defendants ask a judge to hold the SAD Scheme plaintiff accountable, all of the sudden the rule of law barrier reappers and judges repeatedly make all inferences against the defendants.

All told, the plaintiff got a TRO it almost certainly didn’t deserve, caused tens of thousands of dollars of damages to the defendants, and is only liable for paying out of its inadequate bond. Grr.

Case Citation: Shenzhen Langmi Technology Co., Ltd. v. Schedule A Defendants, 2026 WL 569072 (N.D. Ill. Feb. 26, 2026)

BONUS: In a non-precedential opinion, the Seventh Circuit rejects SAD Scheme personal jurisdiction merely based on the defendant’s product being available in Illinois, without the plaintiff doing a test buy or providing other evidence of the defendant’s sales in Illinois:

In the context of Schedule A litigation, the defendant’s operation of an online store accessible in the forum state, combined with sales in the forum state, has been found sufficient to subject that defendant to personal jurisdiction….

there’s no evidence in the record of Illinois purchases. The evidence upon which the district court relied shows only that it was possible to order the defendants’ products and have them shipped to Illinois, not that such sales took place. Those records consist of screenshots of Walmart’s website showing the checkout page with the infringing product, a Chicago shipping address, and the estimated total, but not a completed purchase….

Therefore, the district court clearly erred in finding that the defendants sold products to Illinois customers. Nor was that error harmless. Without those sales, the court’s basis for personal jurisdiction is merely that the defendants operated a website accessible in the United States. And, as we explained in Curry, more is required to establish personal jurisdiction

Liu v. Monthly, No. 25-2074 (7th Cir. March 9, 2026)

BONUS 2: Liu v. Schedule A Defendants, No. 4:25-cv-01220, 2026 BL 78756 (E.D. Tex. Mar. 09, 2026): “Federal courts thus lack authority to freeze defendants’ assets for future satisfaction of a potential judgment awarding damages for utility-patent infringement.”

The post SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants appeared first on Technology & Marketing Law Blog.

You can imagine my surprise when Scribd emailed me in early February 2026, saying that one of my uploads had been taken down due to a DMCA takedown notice. Even more shocking was the removed file, “Amaretto v Ozimals Preliminary Injunction,” which I uploaded in early January 2011. (If you don’t remember that case, it was the super-interesting dispute between the Second Life virtual horses and virtual bunnies). Why is a 15-year-old upload getting DMCAed now?

And this file in particular! Federal court documents aren’t eligible for copyright protection per 17 USC 105, so I felt certain that my upload was in the public domain and didn’t infringe anyone’s copyright. I found Scribd’s counternotification procedure (they didn’t direct-link to it in their notification to me) and submitted a 512(g) counternotification.

The next day, I got another notice from Scribd saying that my content was taken down due to a DMCA takedown notice. I couldn’t tell if this was a new takedown request or more details about the one Scribd already effectuated. The targeted URLs in the takedown notice related to education materials, but buried in the list of dozens of targeted URLs was my upload:

The DMCA notice purportedly “identified” the copyrighted works that I allegedly infringed:

Users on [Scribd] have uploaded The Daring English Teacher, Inc. resources. These materials can be found here: https://www.teacherspayteachers.com/Store/The-Daring-English-Teacher.

My involvement in this DMCA notice made no sense. I posted a federal court document. What does that have to do with teaching resources?

It appears there are 863 paywalled items available at the identified URL, so I did not try to confirm if the preliminary injunction was somehow embedded in any of them. That seems extremely unlikely given the niche-y nature of this particular court document.

[Query: 512(c)(3) says the notice must identify “the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.” Does a notice indiscriminately pointing to a URL enumerating 863 paywalled items satisfy this requirement?]

Plus, even if an identified work contained a copy of the preliminary injunction, it’s in the public domain. It does not appear that Scribd invested any effort to address the notice’s very obvious public domain problem.

In response to my counternotification, Scribd replied to me:

We are in receipt of your DMCA counter-notification. We appreciate your patience as we notify the complaining party and await their response. The complainant has a maximum of fourteen (14) business days to:

• rescind the original notification,
• ignore the counter-notification, or
• notify Scribd of their intent to pursue further legal action.

We are prohibited from displaying or restoring the content until the matter is resolved. We can restore the content only if the complainant rescinds the original notification, or after 14 days if the complainant fails to respond.

Say what??? This procedure is a pastiche of 512(g) concepts that deviate from 512(g) in important ways:

• Scribd’s response says “We are prohibited from displaying or restoring the content until the matter is resolved.” WRONG. 512(g) says that the service MUST restore the file in 10-14 business days of my counternotice UNLESS the copyright owner has filed a lawsuit.
• Scribd’s response says “We can restore the content only if the complainant rescinds the original notification, or after 14 days if the complainant fails to respond.” WRONG. Scribd MUST restore the content NO MATTER WHAT the complainant tells Scribd–other than the copyright owner saying it has filed suit. Scribd’s procedures say that if the complainant responds to Scribd but doesn’t rescind the notice, then Scribd will not restore the content. That’s not what 512(g) says.
• The response says the complainant can “notify Scribd of their intent to pursue further legal action.” Why? The complainant’s declared intent is irrelevant to 512(g). Per 512(g), within the 14 business day window, the complainant can block the restoration ONLY if the complainant “has filed an action seeking a court order to restrain the subscriber.”

Of course, Scribd can choose to forego its eligibility for 512(g)’s safe harbor. Many services make that choice because uploaders don’t have many tenable claims that 512(g) could apply to. Based on the procedures Scribd has adopted, I think Scribd has chosen to forego 512(g). I wonder, however, if they intended to do so, or if this was just a sloppy or thoughtless implementation of DMCA procedures.

Ten days after the initial takedown, I received an email from Rachel Andruczyk, the copyright agent (apparently not the copyright owner) who submitted the DMCA takedown notice governing the Daring English Teacher. (Rachel appears 12 times in the Lumen database). She wrote me:

Since Scribd has temporarily removed access, I cannot see the material.  Several URLs were reported in this notice and there is a chance that one was captured in error.  I would be happy to retract the notice if you could please just send me an image of the material in question so that I can identify it one way or another.

I replied:

It sounds like you don’t know how to use the Wayback Machine?

You can see it here: https://web.archive.org/web/20110130221240/https://www.scribd.com/doc/47037695/Amaretto-v-Ozimals-Preliminary-Injunction

To speed things up, I have included a PDF from the Wayback Machine.

She replied:

I have already sent the retraction notice to Scribd and it should be restored shortly.

I replied:

Thank you, but I remain confused how the error occurred in the first place. Could you please help me understand?

She replied:

I work for several authors to find and remove copyright infringements.  This involves entering their watermarks, key words, names, etc.  Line by line, I am scanning and reporting.  Somewhere in the URL with the content belonging to you, there must have been some commonality in the search terms.  I am human and most likely clicked a line above or below the intended target in the list. This is an extremely rare occurrence in all the years I have been doing this.  Once again, I apologize.

Say what? “I am human and most likely clicked a line above or below the intended target in the list.” Seriously, sloppy mousing is the purported reason why a public domain document got knocked off the Internet? There is no “oops” excuse for sending wrong DMCA takedown notices. 512(c)(3) notifications are powerful legal tools. They need to be accurate. This notice wasn’t.

Now, if you’re a long-time reader, I know what you’re thinking. We already know that 512 is a cesspool of bogus takedown notices that 512(f) has failed to curb. This particular incident is at most a mildly interesting example demonstrating those well-understood phenomena. Fair enough.

Still, I think my experience highlights a few details about the collapse of the 512 notice-and-takedown bargain. Some of the possible lessons:

• takedown notice senders don’t care if their notices are accurate or not, and many senders don’t have adequate QA processes to prevent obvious errors.
• most uploaders would not have counter-noticed in this circumstance. The typical uploader wouldn’t have the same degree of confidence I have about 17 USC 105 or 17 USC 512(g) to push back. So the takedown notice and resulting removal are almost always going to be dispositive for targeted uploads.
• 512(f) is worthless. Could I sue Rachel Andruczyk for her self-admitted error? Per Rossi, to survive a motion to dismiss, my claim probably would need more damning proof of her subjective intent. “Mere” dereliction may not be enough.
• takedown notice senders can get their takedown notices honored even if they only make indeterminate gestures towards the copyrights they purport to represent.
• Scribd was thinking about going public at a $1B valuation, so it’s not a small company. Yet its DMCA procedures are clearly not industrial-grade, especially its garbled implementation of 512(g). Smaller and less well-funded services have even worse DMCA practices.
• most people already assume that services essentially automatically remove content in response to takedown notices, no questions asked. This removal of public domain material fits that stereotype.
• more generally, in the triangle of copyright owner-service-uploader, the service will almost always side with the copyright owner over the uploader. Scribd did not protect my interests as an uploader, despite the obvious merit of my position and Scribd’s 15 year history with this item.
• as a result, be careful entrusting any uploads you care about to third-party UGC services. The only true way to be in control of your online fate is at a website and servers you operate and control.

(I’ll note that SCU has removed some of my uploads of court filings to the SCU Digital Commons in response to plaintiff complaints that they don’t want their litigation antics so visible. At this point, if I really care about keeping files online, I host them at my website. Even then, my web host has been targeted based on my uploads. It’s a rough world out there for uploaders, regardless of their carefulness and expertise).

To close the story, 10 days after the initial takedown, Scribd replied to me:

The DMCA notification that resulted in removal of your content was rescinded by the complainant. Your documents were restored (along with likes, view counts, and other metrics) to their original links. The complainant’s action renders the counter-notification moot and so we consider this matter closed.

The matter involving this particular upload may be closed in Scribd’s mind, but everything else raised by this blog post remains very much open.

A reminder of my short essay, “How the DMCA’s Online Copyright Safe Harbor Failed.”

* * *

Scribd’s comms department sent me the following comments in response to a draft of this post I sent them:

Scribd complies with applicable copyright laws, including the DMCA. We respect the rights of copyright holders and have established processes for reviewing and responding to copyright infringement. When we receive a valid DMCA notification, we remove the identified content.

The DMCA framework anticipates that mistakes can occur and provides a process for correction. In this case, that process led to the restoration of the material.

More details about Scribd’s copyright policies are available here.

The post A First-Hand Look at the Messy Underbelly of DMCA 512(c) Takedowns appeared first on Technology & Marketing Law Blog.

* * *

I previously summarized the case:

McGucken is a professional photographer who has appeared on the blog before. He claims that third party “contributors” uploaded his copyrighted photos to ShutterStock as part of ShutterStock’s licensing program. Specifically, McGucken claims that a total of 337 images were uploaded, of which 165 were downloaded and that led to 938 licenses. In total, those licenses generated $2,131 in revenues, split between the contributor and ShutterStock.

The court summarizes ShutterStock’s prescreening efforts:

Shutterstock reviews every image before it appears in the online marketplace. It claims that it does this to weed out images that contain “hallmarks of spamming,” “visible watermarks,” technical quality issues, or material like “pornography, hateful imagery, trademarks, copyrighted materials, [or] people’s names and likenesses without a model release.” Technical quality issues that, according to Shutterstock, could prevent an image from appearing on the platform include poor focus, composition, lighting, and blurriness. Shutterstock’s reviewers examine each image for an average of 10 to 20 seconds and typically each image is reviewed by only one person. Prior to review, Shutterstock automatically removes all metadata associated with the file and allows users to supply their preferred display name and metadata. Shutterstock’s reviewers examine that new user-created metadata, which includes an image title, keywords, and a description.

512(c)

The district court ruled on summary judgment for ShutterStock on all 512(c) elements. The Second Circuit reverses that conclusion on two elements, likely positioning those issues for trial.

Service Provider. The “broad definition…covers any online platform designed to assist users in doing something that benefits those users.”

Repeat Infringer Policy.

all McGucken has shown is that Shutterstock failed to terminate one repeat infringer. Considering that Shutterstock hosts hundreds of millions of images and videos, uploaded by millions of contributors, the failure to terminate one repeat infringer, standing alone, cannot establish unreasonable implementation. To hold otherwise would require a standard of perfection not contemplated by the statute.

Standard Technical Measures. Metadata doesn’t meet the statutory definition of STMs (nothing does).

Actual/Red Flags Knowledge. “McGucken cites nothing in the record suggesting that any Shutterstock employee ever reviewed the metadata (or lack thereof) associated with his images that were uploaded to the platform.”

Expeditious Removal. “Shutterstock’s removal of the noticed images within four days of McGucken’s DMCA compliant takedown notice was sufficient.”

Storage at User’s Direction. So far, the Second Circuit’s opinion is going smoothly. Now, it takes a dramatic turn for the worse.

The Second Circuit questions if ShutterStock stores its users’ uploads at their direction because it manually prescreens uploads applying its editorial standards:

The task for courts applying § 512(c)(1) is to decide whether a given service provider plays a sufficiently active role in the process by which material appears on its platform such that, as a result, its storage and display of infringing material is no longer meaningfully at the user’s direction….

functions like transcoding, copying, and playback of user-uploaded materials have fallen within the ambit of the safe harbor…

Our caselaw also makes clear that under § 512(c), service providers can review and screen user content before they store it on their platform without becoming ineligible for safe harbor, particularly where the ability to exert control over the content that appears on the platform is necessarily limited by the sheer volume of uploaded user content. [cite to Capitol Record v. Vimeo]…

A service provider may engage in rote and mechanical content screening, like excluding unlawful material, enforcing terms of service, or limiting uploads “to selected categories of consumer preferences,” without falling outside the ambit of § 512(c)(1). On the other hand, a service provider is likely to run afoul of § 512(c)(1) if it is applying its aesthetic, editorial, or marketing judgment to determine which user uploads it accepts….

we adopt the following general rule: if a service provider engages in manual, substantive, and discretionary review of user content—if, on a case-by-case basis, it imposes its own aesthetic, editorial, or marketing judgment on the content that appears on its platform—then its storage of infringing material is no longer “at the direction of a user.” In other words, “extensive, manual, and substantive” front-end screening of user content is not “accessibility-enhancing” and is not protected by the § 512(c) safe harbor.

Boom. Yet another notorious Second Circuit line-drawing exercise that ratchets up defense costs and undermines predictability for both sides.

So what evidence will show that a service is making “aesthetic, editorial, or marketing judgments”? You know this is going to be maddeningly talismanic…and trigger expensive discovery…

the duration of review—that is, how long each piece of user content is under review before it is approved or rejected—and the proportion of user uploads that the service provider accepts are relevant factors to resolving the inquiry. Likewise, the fact that a service provider conducts human review rather than screening images with software may indicate that its content review is more substantive than cursory. But none of these factors is dispositive, and they cannot substitute for the ultimate factual inquiry into the nature of the service provider’s screening of user uploads.

Seriously? Restated: using humans to prescreen increases the service’s legal risk, but only if the humans take too long to review each image (and how long is too long???). FFS.

The court continues reciting the evidence that indicates if the service is making aesthetic, editorial, or marketing judgments:

There is evidence in the record that suggests Shutterstock’s review of user images is neither cursory nor automatic. To begin, when a user submits an image to Shutterstock, the image does not immediately appear on the website; rather, the contributor must wait, sometimes for hours, until they receive an email from Shutterstock letting them know which of their images were accepted. That fact is not dispositive, but it suggests some intervention by Shutterstock between a user upload and the appearance of material on the platform. Moreover, Shutterstock’s website states that it “has high standards and only accepts a portion of the images submitted to be included in [its] collection.”…There are “30-odd” reasons that an image might be rejected by a Shutterstock reviewer, which include focus, exposure, lighting, and noise.

The record also contains evidence that Shutterstock’s reviewers exercise some subjective discretion even when applying seemingly rote and straightforward criteria. For instance, when considering an image’s focus, Shutterstock reviewers are “trained to know the difference between something that’s just out of focus and something that’s more intentional.” And according to Shutterstock, a reviewer may still accept an image that has focus issues if it is “a really unique shot” or a “hard shot to get.”…In the end, as Shutterstock itself concedes, “photography is an art . . . you can’t just say, ‘This is yes, this is no.’” Together, these statements could lead a factfinder to conclude that Shutterstock’s reviewers exercise a considerable degree of case-by-case aesthetic or editorial judgment when determining which images to allow on the platform.

What does the court expect ShutterStock to do here? If it doesn’t screen for image quality, its database becomes cluttered with junk–exactly what successful uploaders don’t want. Maintaining the database’s integrity keeps the credible uploaders from competing with AI slop, and a higher quality database is more likely to draw potential licensees because they can rely on the quality standards so they don’t waste their time. Perhaps the court thinks that running a paywalled licensing database is fundamentally inconsistent with 512(c).

And the idea that a few hours delay for prescreening may be disqualifying? Plaintiffs know what to do with musings like that.

The court continues:

Shutterstock counters that its front-end screening is rote and mechanical—that its reviewers consider only “apparent technical issues or policy violations.” And indeed, there is evidence in the record that supports that characterization. For one, as Shutterstock emphasizes, a reviewer typically spends no more than 10 to 20 seconds examining an image. Further, there is evidence in the record that approximately 93 percent of submitted images are approved for the platform. A factfinder might conclude that such a high “success” rate supports an inference that it is the users, and not Shutterstock’s reviewers, who dictate the images that appear on the site….

Of course, approving a high rate of submitted images could indicate that Shutterstock’s image screening is limited and permissive. Alternatively, a high image acceptance rate could suggest that Shutterstock’s contributors know what types of images are likely to be approved and proactively curate their own submissions. Indeed, the record suggests that one reason Shutterstock gives its contributors guidance on the images to submit is to reduce the likelihood that an image will be rejected. Similarly, a platform that successfully coaches its contributors on the types of images it prefers to display may generally have to spend less time reviewing each individual image. Therefore, while a low acceptance rate may indicate that a platform is selective in the content it accepts, a relatively high acceptance rate does not invariably establish the opposite.

As the old adage goes, if you’re explaining, you’re losing. Any service that has to haggle with plaintiffs over whether their content moderation is sufficiently “rote and mechanical”–e.g., whether their reviewers are lingering too long over a particular upload or rejecting too many uploads–has already lost the game.

Also…what’s the difference between (1) articulating content editorial standards in your TOS (which many regulators are now demanding, though those edicts may be unconstitutional), and (2) “coaching” users about what uploads are proper?

Right and Ability to Control the Infringements.

[Reminder: courts have redefined this factor to turn on whether the service exercises “substantial influence” over users’ activities. That redefinition clarified nothing, so we’re back to epistimological inquiries.]

Citing Vimeo, the court says “a service provider does not necessarily exercise substantial influence over user activities merely because it screens every upload before it appears on its platform.” In Vimeo, the court said a video-sharing platform could permissibly impose content gatekeeping criteria that “were in the nature of (i) avoiding illegality and the risk of offending viewers and (ii) designing a website that would be appealing to users with particular interests.” In Viacom, the court said substantial influence exists “where the service provider instituted a monitoring program by which user websites received ‘detailed instructions regard[ing] issues of layout, appearance, and content.’”

Here, the court says: “the relevant inquiry here is whether the image pipeline Shutterstock has constructed—which begins with its lengthy guidelines for successful submissions and ends with manual image review—enables Shutterstock to exercise substantial control over the images that appear on its platform.”

An “image pipeline”? Are we reinvigorating 1990s metaphors about surfing the Internet?

The court identifies the relevant evidence to this standard:

Shutterstock screens every image before it appears on the platform—this screening determines whether an image ever gets on the platform….there is evidence here that Shutterstock’s image review goes beyond the limited purposes of restricting the site to “selected categories of consumer preferences” and excluding unlawful images. Rather than engaging in categorical content screening—like accepting only holiday-themed images, or images that feature animals—Shutterstock appears to screen user images for their overall aesthetic quality. Curating a “collection” of high-quality images is not the same as designing a website “that would be appealing to users with particular interests.”…

Shutterstock extensively advises potential contributors on the types of images it is likely to accept. That is unlike the service provider in Vimeo II, which “encouraged users to create certain types of content,” but did not condition their ability to post material on whether they created the provider’s preferred types of content….a reasonable factfinder might conclude that the advice and instruction Shutterstock provides its contributors, coupled with its image screening process, are sufficiently coercive to constitute substantial influence….

the duration of Shutterstock’s image review and its 93 percent approval rate are relevant facts, but they are not dispositive

One way of reading this is that the Second Circuit is collapsing the distinctions between the “stored at a user’s direction” and “right and ability to supervise” factors, because apparently they both depend on the same evidence?

1202 CMI

ShutterStock automatically strips out the metadata of uploaded images and adds its own watermark to every image in its database. The court says the 1202 claims fail:

McGucken points to no evidence suggesting that Shutterstock affixed its watermark to his images—or, indeed, to any images—with knowledge that it constituted false CMI and for the purpose of concealing copyright infringement…

While Shutterstock concededly knows that it removes CMI from every image ingested into its system, Shutterstock explained—and McGucken failed to refute—that it removes metadata from all images primarily to avoid computer viruses and the dissemination of personally identifiable information, and not for any reasons related to infringement.

This ruling reinforces that 1202 has a “double scienter” requirement, which should help curb other 1202 cases–especially the cases against generative AI model-makers.

Implications

Second Circuit Walks Back the Vimeo Case. Last year’s Vimeo opinion was written as if it was a watershed Section 512(c) defense win, but it didn’t draw much attention. Why? First, I viewed it as a Pyrrhic defense victory because it added yet more details that plaintiffs could attack to disqualify 512(c) defenses. Second, I think no one really believed other Second Circuit panels would defend the 512(c) safe harbor the way Judge Leval tried to do. And here we are. A year after the Vimeo opinion, and the next Second Circuit panel to address Section 512(c) compounds Section 512(c)’s complexity and undermines 512(c) for any service that prescreens content.

(Note: the Second Circuit did the same thing a decade ago. The EMI v. MP3Tunes decision walked back a defense-favorable Vimeo ruling that had come out not that long beforehand).

The Incoherent Standard for User-Directed Storage. The Second Circuit says: “A service provider may engage in rote and mechanical content screening, like…enforcing terms of service” and still qualify for 512(c). However, the service loses 512(c) if it “imposes its own aesthetic, editorial, or marketing judgment on the content.”

Hello…does anyone else see the intractable conflict? A service can always claim it is “enforcing its terms of service” when moderating content, so this legal standard sets up an obviously false dichotomy. The opinion then suggests there are right and wrong kinds of TOS terms, such as its discussion about impermissible “coaching” to secure the right kinds of uploads. At minimum, this ensures more expensive discovery and fights over how the Second Circuit purported to thread this needle.

Bonus conceptual dilemma: the court says 512(c) disqualification occurs if a service “imposes its own aesthetic, editorial, or marketing judgment on the content that appears on its platform,” and then it says that the evidence for this is if the service does “manual, substantive, and discretionary review of user content.” These are not the same thing! Content moderation always involves difficult judgment calls and line-drawing exercises, so it’s possible to do “manual, substantive, and discretionary review of user content” for reasons other than imposing “its own aesthetic, editorial, or marketing judgment on the content that appears on its platform.”

Then again, the inclusion of the word “editorial” makes the court’s standard a non-standard. Every content moderation judgment is an editorial decision of some sort. Thus, the phrase “rote and mechanical content screening” is incoherent.

This Opinion is an Attack on Content Moderation. Restated, this court says that some pre-posting content moderation disqualifies defendants from 512(c). But which content moderation techniques should defendants avoid if they care about 512(c)? No idea. The court puts every content moderation decision in play. Reviewers took too long. Reviewers tried to screen out junk submissions. Reviewers made judgment calls about how to apply standards (which every content moderator must do with every decision). The services’ rejection rates are too high. The service did too much “coaching” of what uploads it wanted. In other words, there is no safe harbor for content moderation that ensures the safe harbor for user-caused copyright infringement. Plaintiffs can attack everything.

The court’s “guidance” to services is to do less content moderation if they want toincrease their eligibility for 512(c). This is a terrible message to send, especially now. As a reminder, Section 230 was written because Congress wanted to encourage, not discourage, content moderation. Further, it’s tone-deaf about what’s going on in the real world right now. We desperately NEED more content moderation, not less; we need more efforts to identify or screen out AI slop; we need more efforts by services to encourage civility and discourage rage. The Second Circuit, instead, wants to trigger liability if content reviewers maybe think a few extra seconds about whether something should go live or not. The Second Circuit really needs to read the room.

I will also add that this opinion implicitly encourages services to impose stricter time limits on content reviewers’ average review times, even though such time limits will likely increase the overall stress and burnout of content reviewers. This is a decidedly human-unfriendly opinion at every level. Or maybe the Second Circuit thinks services should shift more content review to the algorithms???

Case citation: McGucken v. Shutterstock, Inc., 2026 WL 364412 (2d Cir. Feb. 10, 2026)

This ruling might inspire you to revisit my essay, How the DMCA’s Online Copyright Safe Harbor Failed.

Want more? See my follow-on post, A First-Hand Look at the Messy Underbelly of DMCA 512(c) Takedowns

The post Pre-Publication Content Moderation Can Disqualify Services from the DMCA 512(c) Safe Harbor–McGucken v. ShutterStock appeared first on Technology & Marketing Law Blog.