It is fair to say that photographer and digital artist Harold Davis is no fan of Pinterest, the image sharing social media platform popular with DIY crafters, recipe sharers, design enthusiasts, and, apparently, people who admire Davis's oeuvre. Davis believes (and alleged in the complaint he filed) that Pinterest provides users with tools that make it "exceedingly easy" for them to commit copyright infringement by capturing images from the web (without authorization of copyright owner like him) and copying them to their personal pages on Pinterest (or, in Pinterest's lingo, "pinning" them to the users' "boards"). He also alleges that Pinterest fails to take steps it could to minimize infringement, such as screening pinned images for copyright notices. Compounding the problem, according to Davis, is that Pinterest “monetizes those images ... by displaying and distributing those images to its users, which are incorporated with targeted advertisement.” Davis sued the platform for both direct and contributory copyright infringement, claiming that he had identified “thousands upon thousands of instances where [his] federally copyrighted images are used by Pinterest to hawk goods and services."

Earlier this week, a district court in the Northern District of California granted Pinterest's 12(b)(6) motion to dismiss Davis's contributory infringement claim.

To establish a claim for contributory copyright infringement, a plaintiff must prove that the defendant (1) had knowledge of another’s infringement and (2) either (a) materially contributed to that infringement or (b) induced that infringement. (Davis's allegation that platform users were guilty of direct copyright infringement when they pinned his images on their boards was assumed to be true for purposes of the motion.) Davis did not allege in his complaint that Pinterest had actual knowledge of users' specific acts of infringement; instead, he alleged that Pinterest had constructive knowledge of the infringement (i.e., Pinterest knew or had reason to know of it) and that Pinterest had proceeded with willful blindness of the rampant infringement occurring on the platform. The question for the court was whether those allegations, if true, were sufficient, as a matter of law, to satisfy the "knowledge" prong of the test for contributory infringement.

The district court acknowledged (as the Ninth Circuit itself has) that there was "some inconsistency in our case law on the 'knowledge' element of contributory liability." However, relying on A&M Records, Inc. v. Napster, Perfect 10, Inc. v. Amazon.com, Inc., and Perfect 10, Inc. v. Giganews, Inc., the court concluded that "if an online file sharing service was capable of 'substantial noninfringing use,' then constructive knowledge alone [is] not sufficient to impose liability for contributory infringement. Instead, “in an online context, evidence of actual knowledge of specific acts of infringement is required to hold a computer system operator liable for contributory copyright infringement.”

Since Davis didn't allege facts to support that Pinterest had actual knowledge of users's infringement, his claim for contributory infringement was fatally flawed. Moreover, even assuming that constructive knowledge was sufficient to support the claim, Davis failed to allege that Pinterest had constructive knowledge of specific acts of infringement of his works. Davis alleged only that his photos appeared on users' boards without his approval; he did not allege that Pinterest knew or had reason to know about these uses. The evidence he did proffer - communications Davis sent to Pinterest executives about the "misuse of his photographs generally" - were insufficient to provide Pinterest with actual or constructive knowledge because they failed to specify particular acts of infringement. Indeed, when Pinterest executives asked Davis to provide the URLs for infringing pins, he responded that "it was impracticable to provide this information." Wrong answer, Mr. Davis.

Davis's claim that Pinterest was willfully blind to the infringement occurring on its platform fared no better. To prove willful blindness, a plaintiff must demonstrate that the defendant (1) subjectively believed that infringement was likely occurring on its website and (2) took deliberate actions to avoid learning about the infringement. The court concluded that "willful blindness, as a proxy for knowledge, still requires allegations that [Pinterest] was willfully blind to the specific instances of infringement at issue in the case, and not just to copyright infringement generally." In support of his willful blindness argument, Davis argued that Pinterest removes metadata from digital images (including copyright management information) and renames images on its website specifically “to induce, enable, facilitate, and conceal its own direct and/or contributory infringement of copyright images.” However, Davis failed to provide factual support for these conclusory allegations. Moreover, as the court explained:

"And critically, Plaintiff fails to allege how [Pinterest] was willfully blind to infringement of Plaintiff’s copyrights. Plaintiff’s allegations, taken in the light most favorable to Plaintiff, merely suggest that Defendant operated its website indifferent to the risk of copyright infringement generally and indifferent to the difficulty copyright holders may have in identifying misuse of their works. But this is not enough. More than a generalized knowledge by [Pinterest] of the possibility of infringement is required to allege contributory infringement." (Internal citations omitted.)

Davis v. Pinterest, Inc., Case No. 19-cv-07650-HSG, 2021 WL 879798 (N.D. Cal. Mar. 9, 2021