For nearly twenty-five years, social media platforms have enjoyed a safe harbor from the copyright infringement that appears on their platforms. This is because the infringing content is uploaded by users, and it is the users who are the liable parties. But what if the social media platform uses that user-uploaded content to attract attention to advertisements on the platform?

According to a recent Northern District of California decision, user-uploaded content and platform advertising may also find safe harbor from copyright infringement claims under the Digital Millennium Copyright Act (“DMCA”).

In Davis v. Pinterest, Inc. (N.D. Cal. May 3, 2022), the court held that Pinterest did not infringe the copyrights of artist and professional photographer, Harold Davis, when his artwork was uploaded by users and displayed in proximity to Pinterest advertising on its platform.

While this decision is a clear win for social media giants, copyright holders will no doubt be troubled by the potential consequences that this ruling can spawn.

Below, we discuss where, in the court’s view, the plaintiff Davis fell short, and what this decision may mean for social media platforms going forward.

Pinterest’s Activities

Pinterest operates a mobile application and website that allows users to upload images and videos onto virtual “Pinterest boards.” The individual uploads are referred to as “Pins.” Based on a user’s preferences, Pinterest employs algorithms to share Pins with other users on the platform.

Advertisers and businesses can also create and upload content to the website and mobile application, which they pay Pinterest to promote. That content is referred to as “Promoted Pins,” and like user-uploaded Pins, Pinterest also employs algorithms to display “Promoted Pins” to its users. Given that advertising generated revenue may be dependent on the number of users that interact with it, Pinterest employs advertising related algorithms to direct relevant Promoted Pins to individual users.

Davis, whose copyrighted artwork was uploaded to Pinterest by Pinterest’s users, contended that Pinterest infringed his works when Pinterest’s algorithms displayed the users’ Pins containing his works in close proximity to Promoted Pins, i.e., advertisements.

Pinterest moved to dismiss Davis’s claim for contributory copyright infringement by arguing that the alleged conduct fell within the DMCA safe harbor provision, which precludes online service provider liability for “infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”

The Court’s Decision

The district court found that Pinterest was protected, reasoning that the DMCA’s safe harbor provision precluded liability because (1) it was Pinterest’s users, not Pinterest, who uploaded the challenged artworks to the platform, notwithstanding that Pinterest facilitated its user’s ability to access images of Davis’ works; (2) there was no evidence that Pinterest had substantial influence or direction regarding the content users uploaded to the platform, namely any specific user Pins; and (3) Davis failed to establish that Pinterest obtained a financial benefit “directly attributable” to the specific infringing material given that Davis failed to produce any evidence of revenue attributable to advertisements appearing next to Pins of his content on the platform.

Critically, the court found that Davis failed to offer support for his “novel theory” that tracking user data and displaying advertising near copyrighted work on the platform violated Davis’s exclusive rights. This was especially true because Pinterest used different algorithms to determine which Pins would be shown to a user as opposed to which Promoted Pins, advertising, would be shown.

Conclusion

What does this mean for owners of user-driven platforms like Pinterest? The DMCA’s safe harbor protection will not be withheld simply because service providers advertise on their platforms alongside user-uploaded content containing copyrighted works.

However, the court’s reasoning leaves open a possibility where a different conclusion could be found.  If a future claimant can show evidence proving that a platform did indeed have substantial influence or direction regarding the content that users uploaded to the platform and/or that the platform gained a conclusive financial benefit from the infringing content, such a copyright holder may be able to sway a court to grant relief.