Harrington III v. Pinterest, Inc.

Case No.: 5:20-cv-05290-EJD
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
MAUREEN HARRINGTON, et al.,
Plaintiffs,
v.
PINTEREST, INC.,
Defendant.
Case No. 5:20-cv-05290-EJD
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. No. 109
Defendant Pinterest, Inc., (“Pinterest”) moves for summary judgment in this copyright
infringement suit brought by Plaintiff Maureen Harrington as a representative of Blaine
Harrington III’s estate (collectively, “Harrington”). Def. Pinterest, Inc.’s Notice of Mot. & Mot.
for Summ. J. (“Mot.”), ECF No. 109. The motion has been fully briefed. Pl.’s Mem. of P. & A.
in Opp’n to Def.’s Mot. for Summ. J. (“Opp’n”), ECF No. 116; Pinterest, Inc.’s Reply in Supp. of
Mot. for Summ. J. (“Reply”), ECF No. 120.
Upon careful review of the relevant documents, the Court finds this matter suitable for
decision without oral argument pursuant to Local Rule 7-1(b). For the reasons discussed below,
the Court GRANTS Pinterest’s motion for summary judgment.
I. BACKGROUND
After a series of motions to dismiss, Harrington now brings one cause of action for direct
copyright infringement on behalf of himself and a class of other professional photographers whose
federally registered copyrighted works were publicly displayed by Pinterest in notifications
outside of its website. 3d Am. Class Action Compl. ¶¶ 49, 59–67 (“TAC”), ECF No. 88.
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A. Pinterest’s Platform
Pinterest operates one of the largest social media platforms in the world. Id. ¶¶ 1, 17. The
aggregate monthly users of Pinterest’s websites and mobile applications (collectively, its
“platform”) number in the hundreds of millions. Id. ¶¶ 1, 18. Pinterest’s platform allows users to
upload content in the form of a “Pin” and share that content with other Pinterest users. Decl. of
Nicholas DeChant in Supp. of Def. Pinterest, Inc.’s Mot. for Summ. J., dated December 9, 2021,
¶¶ 2–3, 7 (“DeChant Decl. I”), ECF No. 109-12. A Pin operates as a “visual bookmark” and
consists of the user-uploaded content (typically an image), a user-created title and description, and
a hyperlink to a third-party website. Id. ¶¶ 2, 5, 7; Decl. of Henry Lien in Supp. of Def. Pinterest,
Inc.’s Mot. for Summ. J. ¶ 5 (“Lien Decl.”), ECF No. 109-11. When a user uploads content to the
company’s platform, Pinterest’s system automatically standardizes its file format and other
specifications. Id. ¶ 8. For images, Pinterest also generates and stores several different sizes of
the uploaded content, known as “variants.” Id. ¶¶ 9–10. Variants allow Pinterest to efficiently
display uploaded content to its users across many types of devices. Id. ¶ 9.
Pinterest displays a custom series of user-uploaded Pins to individual users via “feeds”—
grids of Pins curated by machine learning algorithms and calculated to be interesting to individual
users. Id. ¶¶ 12–13. Pinterest further intersperses feeds on its platform with paid advertisements
that visually appear similar to user-uploaded Pins and are labeled as “promoted.” Id. ¶ 17; see
DeChant Decl. I Exs. 1–2, 4 (screenshots of feeds on Pinterest’s platform). Pinterest displays
these feeds to users in many forms across its platform. DeChant Decl. I ¶¶ 12–18 (describing
feeds on Pinterest’s homepage, feeds displayed when viewing individual Pins, and feeds displayed
as search results).
B. Alleged Infringing Notifications
Of particular relevance here, Pinterest also displays feeds to users in notifications. TAC ¶
24; DeChant Decl. I ¶ 18. These notifications come in several forms, including emails, in-app
notifications, and mobile push notifications. TAC ¶ 24; DeChant Decl. I ¶ 18. Notifications
contain hyperlinks that correspond to an image on Pinterest’s platform. TAC ¶ 24; DeChant Decl.
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I ¶ 18; Dep. of Kevin Kim 40:2–42:4, 44:7–12 (“Kim Dep.”), ECF No. 109-2. Typically, upon
receiving a notification containing a hyperlink, user-side software—that is, the user’s email
program, web browser, operating system, etc.—will read the hyperlink, access the corresponding
image on Pinterest’s server, then display that image to the user. Kim Dep. 42:21–43:10; Decl. of
Nicholas DeChant in Supp. of Def. Pinterest, Inc.’s Mot. for Summ. J., dated March 31, 2025, ¶¶
5–6 (“DeChant Decl. II”), ECF No. 109-20. The parties dispute whether Pinterest’s notifications
also contain advertisements. Compare Decl. of Michael R. Reese in Supp. of Pl.’s Opp’n to
Def.’s Mot. for Summ. J., Ex. 15 (“Reese Decl.”), ECF No. 116-16 (displaying screenshots of
email notifications containing Pins with brand logos), with DeChant Decl. I ¶ 18 (“Notifications
do not contain advertisements.”).
On July 25, 2020, Pinterest sent one such email notification to Harrington that displayed an
image of Harrington’s own copyrighted photograph of a beach scene titled “Waikiki Beach,
Honolulu, Oahu, Hawaii, USA.” TAC ¶ 31. Harrington filed suit on July 31, 2020, approximately
six days later. Class Action Compl., ECF No. 1.
C. The Davis Action
Prior to Harrington initiating the current suit, a different professional photographer filed a
related action against Pinterest in the Northern District. See Davis v. Pinterest, Inc., 601 F.Supp.
3d 514, 517 (N.D. Cal. 2023) (“Davis I”). There, the plaintiff Davis alleged that Pinterest
infringed on his copyrighted photographs by displaying them in proximity to advertisements on
the platform. Id. at 529. Although Davis, similar to Harrington, also alleged infringement based
on notifications outside of the platform, the District Court found that Davis failed to timely
identify these instances of infringement. Id. at 527. Therefore, “instances of alleged infringement
from Pinterest’s notifications [were] not at issue” in the Davis action.1 Id. The court ultimately
found that Pinterest was entitled to safe harbor under Section 512(c) of the DMCA for works
displayed on its platform. Id. at 536.
1 Although, in dicta, the Davis court suggested that works displayed in notifications would not
infringe Davis’s copyrights. Davis I, 601 F.Supp. 3d at 527.
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The Ninth Circuit affirmed upon appeal, holding that: (1) “[t]he district court did not abuse
its discretion by refusing to consider undisclosed and untimely allegations of infringement,” and
(2) “Pinterest established that it is entitled to safe harbor protection” under Section 512(c). Davis
v. Pinterest, Inc., No. 22-15804, 2023 WL 5695992, at *1–2 (9th Cir. Sept. 5, 2023) (“Davis II”).
D. Procedural History
This case was stayed pending resolution of Davis I, then further stayed pending Ninth
Circuit’s decision in Davis II. ECF Nos. 66, 71. When the Court lifted its stay, Harrington
narrowed his infringement allegations to only notifications outside of Pinterest’s platform. Mot.
for Leave, ECF No. 82. Given the Ninth Circuit affirming the exclusion of allegations of
infringement outside of the platform in Davis II, the Court found Harrington’s new narrow claims
were not barred under the doctrine of res judicata. Order Granting Mot. for Leave, ECF No. 87.
Pinterest subsequently filed a motion to dismiss Harrington’s TAC arguing, in part, that
Pinterest’s conduct was protected under the DMCA safe-harbor provision per Davis II. Order
Granting in Part & Den. in Part Mot. to Dismiss, 5, 7 (“MTD Order”), ECF. No. 100; see Mot. to
Dismiss, ECF No. 92. The Court rejected this argument, reiterating that “the Ninth Circuit did not
examine instances of infringement outside of Pinterest’s platform” in Davis II. MTD Order at 7.
The Court also found resolution of this issue inappropriate in a motion to dismiss. Given that the
DMCA safe-harbor defense is a “fact intensive inquiry,” id. (citing Hunley v. Instagram, LLC, 73
F.4th 1060, 1072 (9th Cir. 2023)), the Court could not decide the issue without a factual record, id.
at 8.
Believing the factual record is now sufficiently developed, Pinterest files this motion for
summary judgment asserting two DMCA safe-harbor defenses.
II. LEGAL STANDARD
Summary judgment is required when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “genuine
dispute” exists when “a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” when it “might
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affect the outcome of the suit under the governing law.” Id. When ruling on a motion for
summary judgment, “the evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Tolan v. Cotton, 572 U.S. 650, 651 (2014). The Court “may not
make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,
Inc., 503 U.S. 133, 150 (2000).
The moving party bears the initial burden of showing the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party would not
bear the burden of persuasion at trial, the moving party may demonstrate the absence of a genuine
issue by either negating or showing a lack of evidence supporting an essential element of the
nonmoving party’s claim. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000). Otherwise, the moving party bears its initial burden by showing that a reasonable trier
of fact would find in its favor. Celotex, 477 U.S. at 325.
If the moving party successfully shows the absence of a genuine issue of material fact, the
burden shifts to the non-moving party to “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 256 (citing Fed. R. Civ. P. 56(e)). The nonmoving party
“must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment
is proper if the moving party successfully establishes the absence of a genuine issue of material
fact and the nonmoving party fails to set forth specific facts showing a genuine issue. Celotex,
477 U.S. at 323.
III. DISCUSSION
The Court finds that Pinterest’s conduct is protected under the safe harbor provision in
Section 512(c) of the DMCA .2
Section 512(c) provides an avenue for “service provider[s]” to avoid liability for copyright
2 The Court need not examine whether Pinterest also qualifies for protection under Section 512(d),
or additional arguments regarding infringement, including disputes regarding the dicta in Davis I
that “hyperlinking alone does not constitute copyright infringement” and the Ninth Circuit’s
“server test.”
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infringement “by reason of the storage at the direction of a user of material that resides on a
system or network.” 17 U.S.C. § 512(c)(1). Because Section 512(c) safe harbor is an affirmative
defense to copyright infringement and Pinterest would therefore have the burden of proof at trial,
Pinterest has the burden here to bring undisputed evidence “establish[ing] beyond controversy
every essential element” of its defense. Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d
1045, 1052 (9th Cir. 2017) (internal quotation marks omitted); see also Nissan Fire, 210 F.3d at
1102. 3 To meet this burden, Pinterest must establish that it: (1) meets the threshold statutory
requirements for DMCA safe harbor protections; and (2) satisfies all Section 512(c) factors. The
Court will address each in turn.
A. Safe Harbor Threshold Requirements
To qualify for safe harbor under the DMCA, Pinterest must first satisfy several threshold
statutory requirements—Pinterest must show that it is a “service provider”; that it has a formally
registered designated agent; that it has a repeat infringer policy; and that it has in place standard
technical measures. Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 603–04 (9th Cir.
2018). The Court finds all requirements met.
First, Pinterest is a service provider. A “service provider” is “a provider of online services
or network access, or the operator of facilities therefor.” 17 U.S.C. § 512(k)(1)(B). Pinterest
operates one of the largest social media platforms in the world, allowing users to upload content to
servers operated by Pinterest. TAC ¶ 1; DeChant Decl. I ¶ 2.
Second, it is undisputed that Pinterest has maintained a formally registered designated
agent with the United States Copyright Office to “receive notifications of claimed infringement”
per 17 U.S.C. § 512(c)(2). Lien Decl. ¶ 10.
Third, Pinterest implemented and communicated an adequate “repeat infringer[]” policy
per 17 U.S.C. § 512(i)(1)(A). Pinterest users earn a strike when they upload content that is the
subject of a valid DMCA takedown notice, and accounts that accumulate too many strikes are
3 The Court further discusses the parties’ respective burdens below in Part III.B.3.a.
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terminated. Lein Decl. ¶¶ 16–19.
Finally, Pinterest has “accommodate[d] and d[id] not interfere with standard technical
measures”4 per 17 U.S.C. § 512(i)(1)(B). Standard technical measures enable copyright owners
and service providers to establish a means of excluding infringing material without substantial
expense, like a digital version the copyright symbol (©). Ventura, 885 F.3d at 615. Pinterest
contends that there are no judicially recognized standard technical measures applicable here, and
Harrington does not argue the contrary. In his TAC, Harrington does assert that he added
International Press Telecommunications Council (ITPC) Metadata to his photos, a form of
Copyright Management Information which includes a digitized copyright notice. TAC ¶¶ 42–44.
But he fails to argue that ITPC Metadata falls within the statutory definition of “standard technical
measures,” and the Court has identified no binding case law addressing the issue. Even if ITPC
Metadata were a “standard technical measure[],” however, Harrington also does not assert that
Pinterest somehow “interfere[d]” with these measures. To the contrary, Harrington specifically
alleges that Pinterest “preserves IPTC Metadata on the digital photographs that are uploaded by
Pinterest users” and maintains that data on its servers. TAC ¶ 46.
B. Section 512(c) Requirements
Having determined that Pinterest meets the threshold statutory requirements, the Court
now examines whether Pinterest has met its burden to prove that its alleged conduct is protected
under Section 512(c). This requires three showings: (1) the alleged infringement occurred “by
reason of the storage” of copyrighted material “at the direction of a user” of its service, 17 U.S.C.
§§ 512(c)(1); (2) Pinterest had no actual or red flag knowledge that the stored material is
infringing, 17 U.S.C. §§ 512(c)(1)(A)(i)–(ii); and (3) Pinterest either had no “right and ability to
control” the allegedly infringing activity or did not directly financially benefit from the activity, 17
4 The term “standard technical measures” refers to measures “used by copyright owners to identify
or protect copyrighted works” that: (A) are developed by “a broad consensus of copyright owners
and service providers in an open, fair, voluntary, multi-industry standards process”; (B) “are
available to any person on reasonable and nondiscriminatory terms”; and (C) “do not impose
substantial costs on service providers.” 17 U.S.C. § 512(i)(2).
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U.S.C. § 512(c)(1)(B). The Court addresses each element in turn.
1. By Reason of the Storage at the Direction of a User
Section 512(c) “focuses on the service provider’s role in making material stored by a user
publicly accessible on its site.” Mavrix, 873 F.3d at 1053. To qualify for Section 512(c) safe
harbor, a service provider must show that the alleged infringement occurred “by reason of the
storage at the direction of a user of material that resides on” its system. 17 U.S.C § 512(c)(1).
Congress contemplated that “storage” within the meaning of Section 512(c) includes “‘providing
server space for a user’s web site, for a chatroom, or other forum in which material may be posted
at the direction of users.’” Mavrix, 873 F.3d at 1052 (quoting S. Rep. 105-190, at 43 (1998)).
Thus, “the phrase ‘by reason of the storage at the direction of a user’ covers more than ‘mere
electronic storage lockers.’” Ventura, 885 F.3d at 605–06 (quoting UMG Recordings, Inc. v.
Shelter Cap. Partners LLC, 718 F.3d 1006, 1016 (9th Cir. 2013)). “[P]ublic accessibility is the
critical inquiry.” Mavrix, 873 F.3d at 1053. Any activity that is “narrowly directed towards
enhancing the accessibility of [] posts” is eligible for Section 512(c) safe harbor. Id. at 1056
(internal quotation omitted). The question the Court must answer, then, is whether Pinterest’s
allegedly infringing display of Harrington’s copyrighted work in an email notification was
“narrowly directed towards enhancing the accessibility” of user-uploaded content on Pinterest’s
platform.
No court within the Ninth Circuit has addressed this precise question. In Davis II, the
Ninth Circuit affirmed the District Court’s holding that displays within Pinterest’s platform arise
“by reason of the storage at the direction of a user.” Davis II, 2023 WL 5695992, at *1. The
Circuit reasoned that “Pinterest’s algorithms and other processes for displaying content [on its
platform] alter user-uploaded content to facilitate access” because they are “‘narrowly directed
towards enhancing the accessibility of the posts.’” Id. (internal quotation omitted) (quoting
Ventura, 885 F.3d at 606). But notification-based infringement outside of Pinterest’s platform
was not at issue.
Other Ninth Circuit cases cited in Davis II are also instructive. In Ventura, for example,
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the Ninth Circuit held that altering the file format of uploaded content to increase accessibility
before posting and “enabling users to apply search tags to uploads” are both sufficiently “narrowly
directed towards enhancing [] accessibility” to qualify as “storage at the direction of a user.” 885
F.3d at 606 (internal quotation marks omitted). Similarly, in UMG, breaking user-uploaded videos
into smaller chunks and converting them into commonly used file types fell within Section 512(c)
safe harbor because they were “access-facilitating processes that automatically occur when a user
uploads a video” to the defendant video service. 718 F.3d at 1016.
By contrast, in Mavrix, there was a genuine issue of material fact as to whether “storage”
of user-uploaded material on the defendant’s website was at the direction of the users as opposed
to the defendant itself. See Mavrix, 873 F.3d at 1054 (holding that the applicability of Section
512(c) turned on whether the defendant’s volunteer website moderators were its agents). There,
the defendant website’s moderators screened user submissions and approved only those “relevant
to new and exciting celebrity gossip,” amounting to a mere one third of user submissions being
displayed on the website. Id. at 1056. Similarly, in Atari Interactive, Inc. v. Redbubble, Inc.,
storage was not “at the direction of the user” when the defendant online marketplace “project[ed]
uploaded art onto stock photos of different physical products to show the final products available
for purchase” because the defendant “actively participate[d] in modifying the files uploaded by
users to display the designs on [the defendant’s] physical products.” 515 F.Supp. 3d 1089, 1096,
1101 (N.D. Cal. 2021) aff'd in part, appeal dismissed in part, No. 21-17062, 2023 WL 4704891
(9th Cir. July 24, 2023).
The Court finds the case before it more similar to UMG and Ventura. When a user uploads
content to Pinterest, Pinterest automatically standardizes the file format and generates variants so
it can algorithmically display Pins to other users in its signature grid formation. DeChant Decl. I
¶¶ 8–10, 12–13. This is the same accessibility-enhancing format standardization and tag creation
that was entitled to safe harbor in Ventura. 885 F.3d at 606. This is also substantially similar to
the video format standardization and “chunk” creation that automatically occurred in UMG when a
user uploaded content. UMG, 718 F.3d at 1012; see also Davis I, 601 F.Supp. 3d at 531–32
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(finding Pinterest’s processes similar to those in UMG). Pinterest does not modify user-uploaded
content for use in e-commerce as the Atari defendant did. See Atari, 515 F.Supp. 3d at 1114. Nor
does Pinterest significantly control what user-created Pins appear on its site as the defendant in
Mavrix did. See Mavrix, 873 F.3d at 1056. Although Pinterest’s machine learning algorithms do
choose which Pins to display to which users, DeChant Decl. I ¶¶ 12–13, the Ninth Circuit
specifically held that these algorithms exist for purposes of facilitating access, Davis II, 2023 WL
5695992, at *1.
The fact that Pinterest displayed allegedly copyrighted material outside its platform is not
enough to push Pinterest’s storage of user-uploaded material into the unsafe waters of Mavrix and
Atari. Ultimately, based on the record before it, there appears to be little difference between an
infringing display via web browser, which was entitled to safe harbor in Davis, and an infringing
display via email. In both cases, Pinterest’s service merely provides the user’s software with a
hyperlink. Kim Dep. 42:21–43:10. The software, be it a web browser or otherwise, then requests
the image the hyperlink corresponds to from Pinterest’s server and displays it. Id. Because both a
hyperlink in an email and a hyperlink on a browser link back to images on Pinterest’s service,
there is no clear reason why the first form of display would arise “by reason of the storage at the
direction of a user” while the second would not.
Harrington’s arguments to the contrary are unpersuasive. To rebut this apparent similarity,
Harrington points to solitary language from Mavrix stating that Section 512(c) “focuses on the
service provider’s role in making material stored by a user publicly accessible on its site.” Mavrix,
873 F.3d at 1053 (emphasis added) (citing UMG, 718 F.3d at 1018).5 According to Harrington,
the simple fact that the alleged infringement did not occur on Pinterest’s website means Pinterest
was not sufficiently “enhancing accessibility” to qualify for Section 512(c) safe harbor. But the
5 Because it contends that its email notifications merely contain hyperlinks pointing to its own
servers, Pinterest argues that any display within an email notification is effectively a display “on
its site.” Id. But the internet is ripe with hyperlinks; hyperlinks are one of the foundations upon
which the internet is built. Recognizing any hyperlink to a service provider’s platform as an
extension of that platform would massively expand those platforms into a convoluted network of
overlapping services, making it difficult to discern where one platform ends and another begins.
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Mavrix court drew the proposition Harrington quotes from UMG, which discussed “infringing
materials on service providers’ sites” exclusively. UMG, 718 F.3d at 1018. Mavrix also later
defined two ways that infringing material can be “stored at the direction of the user”: (1) “the
service provider played no role in making that infringing material accessible on its site,” or (2)
“the service provider carried out activities that were ‘narrowly directed’ towards enhancing the
accessibility of the posts.” Mavrix, 873 F.3d at 1056 (emphasis added) (quoting UMG
Recordings, Inc. v. Veoh Networks, Inc., 620 F.Supp. 2d 1081, 1092 (C.D. Cal. 2008)).
Considering this context, it appears that the Ninth Circuit did not intend the Mavrix language
Harrington quotes to restrict Section 512(c) safe harbor only to instances of infringing display on a
service provider’s website. See id. at 1063. Rather, this Mavrix language is simply a concise
summary of the first of two paths to “storage.” Pinterest’s algorithmic display of Pins takes the
second path. Davis II, 2023 WL 5695992, at *1.
Harrington also asserts that a genuine dispute of two material facts preclude summary
judgment. First, Harrington contends that Pinterest’s works contain advertisements, see Reese
Decl. Ex. 15,6 while Pinterest contends they do not, DeChant Decl. I ¶ 18. But this fact is
immaterial. Whether Pinterest’s notifications contain advertising does not bear on whether the
allegedly infringing display arose “by reason of the storage at the direction of a user.” 17 U.S.C. §
512(c)(1). As Davis I noted, “courts have not withheld safe harbor protection simply because
service providers advertise on their platforms alongside user-uploaded content.” 601 F.Supp. 3d
at 534–35 (collecting cases). Second, Harrington claims that Pinterest’s notifications display
images using means other than hyperlinks, but this fact is unsupported by the evidence.
Harrington cites Exhibit 8 of the Reese Declaration to support this proposition, but that exhibit
does not offer proof of the content of notifications; it contains only an article discussing an
algorithm for determining the optimum frequency of notifications. Pinterest, on the other hand,
presents evidence to show that notifications do not contain copies of images, only hyperlinks.
6 Given that this fact is immaterial, the Court need not resolve evidentiary disputes regarding this
irrelevant evidence here.
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Kim Dep. at 42:2–4, 44:7–12. Given Harrington’s failure to rebut Pinterest’s evidence with
evidence of his own, the Court finds no genuine issue for trial on this point.
Finally, Harrington contends that extending Section 512(c) safe harbor protections to
infringement outside of Pinterest’s platform would open the door for infringement on, for
example, billboards in Time Square. But Section 512(c) is a fact-intensive inquiry. Though
possible, like all things, Harrington’s hypothesis would require extreme facts outside the bounds
of this case. The email notifications here merely provide a link to Pinterest users of material
uploaded by other Pinterest users, and therefore narrowly facilitates access to users’ posts by
sharing them with other users. By contrast, a billboard would presumably need to copy the image
from the platform and display it to the general public—including those who are not Pinterest
users—without providing a direct link to the user’s post. Such conduct would likely not be
narrowly tailored at facilitating access to the user’s post.
The Court therefore finds that Pinterest has met its burden to show that the alleged
infringement occurred “by reason of the storage at the direction of a user of material that resides
on” its system, and Harrington failed to respond with facts establishing a genuine issue for trial.
2. Actual or Red Flag Knowledge of Infringement
Next, to gain access to Section 512(c) safe harbor, Pinterest must not “have actual
knowledge that the material or an activity using the material on the system or network is
infringing,” 17 U.S.C. § 512(c)(1)(A)(i), and it must not be “aware of facts or circumstances from
which infringing activity is apparent,” 17 U.S.C. § 512(c)(1)(A)(ii). Courts often describe the
term “apparent” within the meaning of Section 512(c) as “red flag” knowledge. Ventura, 885 F.3d
at 609. Unlike the prior element, “[t]he copyright owner must show knowledge, actual or red flag,
for the [content] that infringed its copyright and are the subject of its claim.” Id. at 610 (emphasis
added) (discussing the summary judgment burden regarding Section 512(c) safe harbor).7
Pinterest argues there is no evidence in the record to show the requisite knowledge, and
7 The Court further discusses this distinction below in Part III.B.3.a.
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Harrington offers no evidence or argument in response. Indeed, the only relevant evidence here
suggests that Pinterest had, at the minimum, no actual knowledge because Harrington never sent
Pinterest a takedown notice or other prior communication identifying infringing material on the
Pinterest service. 8 Pl.’s Resps. to Def.’s 1st Set of Interrogs. No. 10, ECF No. 109-14.
Accordingly, the Court finds that Pinterest has shown the record lacks evidence sufficient
to establish that it had the actual or red flag knowledge of the allegedly infringing display, and
Harrington failed to respond with facts establishing a genuine issue for trial.
3. Control and Financial Benefit
Finally, Section 512(c) safe harbor is foreclosed if a service provider receives “a financial
benefit directly attributable to the infringing activity, in a case in which the service provider has
the right and ability to control such activity.” 17 U.S.C. § 512(c)(1)(B). Pinterest may therefore
remain eligible for Section 512(c) safe harbor if it (1) has no “right and ability to control” the
allegedly infringing display, and (2) received no “financial benefit directly attributable” to that
display. See id.
a. Ultimate Burden at Trial
Before the Court begins, the Court will briefly examine the parties’ ultimate burden of
proof for this final element so as to determine the correct burden for summary judgment. Pinterest
cites only a recent Second Circuit decision to argue that Harrington carries the ultimate burden to
show Pinterest received a financial benefit directly attributable to the infringing activity and has
the right and ability to control such activity. Mot. 17 (citing Capitol Recs., LLC v. Vimeo, Inc.,
125 F.4th 409, 419 (2d Cir.), amended on reh'g in part, 151 F.4th 13 (2d Cir. 2025) (“[A] plaintiff
must also bear the burden of persuasion in showing that the defendant was disqualified from the
safe harbor because it received a financial benefit directly attributable to the infringing activity
8 Pinterest must further “act[] expeditiously to remove, or disable access to,” the infringing
material upon obtaining actual or red flag knowledge of infringement. 17 U.S.C. §
512(c)(1)(A)(iii), (C). Since Harrington did not submit a DMCA takedown request to Pinterest
and has not otherwise suggested that Pinterest had actual or red flag knowledge of the
infringement, this element is not relevant to the Court’s analysis.
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while having the right and ability to control such activity.”)). Harrington did not dispute this
representation of the parties’ burdens, but upon the Court’s review, it appears the Ninth Circuit has
not explicitly joined the Second Circuit on this point.
In 2017, the Ninth Circuit in Mavrix clearly held that the service provider has the burden to
prove all elements of the affirmative defense of DMCA safe harbor:
To be eligible at the threshold for the § 512(c) safe harbor, a service
provider must show that the infringing material was stored “at the
direction of the user.” If it meets that threshold requirement, the
service provider must then show that (1) it lacked actual or red flag
knowledge of the infringing material; and (2) it did not receive a
“financial benefit directly attributable to the infringing activity, in a
case in which the service provider has the right and ability to control
such activity.”
Mavrix, 873 F.3d at 1052 (internal citations omitted) (emphasis added). Then in 2018, the Ninth
Circuit in Ventura held that the copyright owner, not the service provider, has the burden to show
that the service provider has actual or red flag knowledge of the infringing material, as briefly
discussed in the section above. Ventura, 885 F.3d at 610 (“The copyright owner must show
knowledge, actual or red flag, for the [content] that infringed its copyright and are the subject of
its claim.”). But the Circuit did not discuss the burden for the final element at issue here.
Although the Court observes that multiple cases within the Ninth Circuit appear to assume
that the copyright owner carries the ultimate burden to prove this final element, the Court has not
been presented with, and cannot find, any Ninth Circuit case law that has held this is the standard.
In the absence of such a case, the Court must follow the explicit holding in Mavrix—that “the
service provider must [] show that . . . it did not receive a ‘financial benefit directly attributable to
the infringing activity, in a case in which the service provider has the right and ability to control
such activity.’” Mavrix, 873 F.3d at 1052 (emphasis added). Therefore, because Pinterest carries
the ultimate burden at trial, for purposes of summary judgment, Pinterest must present undisputed
evidence showing that it did not have the right and ability to control the infringement and it did
not receive a financial benefit attributable to the infringement. Celotex, 477 U.S. at 325.
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b. Right and Ability to Control the Infringement
Returning to the Section 512(c) elements, the “right and ability to control” infringing
activity requires “something more than the ability to remove or block access to materials posted on
a service provider’s website.” UMG, 718 F.3d at 1030. “[A] service provider must be able to
exert ‘substantial influence’ on its users’ activities.” Ventura, 885 F.3d at 613 (quoting UMG, 718
F.3d at 1030). “Substantial influence” might include “purposeful conduct” or “high levels of
control over activities of users.” UMG, 718 F.3d at 1030; compare id. (upholding a finding of no
“right and ability to control” despite the defendant having the ability to create filtering systems or
search for and remove infringing material), with Columbia Pictures Indus., Inc. v. Fung, 710 F.3d
1020, 1046 (9th Cir. 2013) (holding that the defendant had a “right and ability to control” where
he used automatic processes to specifically seek infringing material, personally assisted users with
locating infringing material, and removed fake, infected, and abusive infringing material).
Here, Pinterest has presented evidence that the linked-to images in its notifications leads to
user-uploaded images on Pinterest’s website, and Pinterest does not direct users to upload that
content. Kramer Decl. Ex. A, at 42:3–43:24; DeChant Decl. I ¶¶ 2–4; Kramer Decl. Ex. B, at
74:20–75:2. The only facts potentially relevant to whether Pinterest has the “right and ability to
control” the user-uploaded content is its algorithms and advertisements. On substantially similar
facts, the court in Davis I found that Pinterest’s control over its algorithms and advertisements did
not “constitute[] the kind of control that is necessary to lose safe harbor protection” under Section
512(c). 9 601 F.Supp. 3d at 534–35 (“Users upload content, and Pinterest does not direct them to
upload any specific content.”); accord, DeChant Decl. I ¶ 2 (“Pinterest does not direct or
encourage its users to upload any particular content.”). The Court finds Davis I persuasive on this
point—the connection between Pinterest’s algorithms and advertisements is insufficient to show
Pinterest’s “right and ability to control” the allegedly infringing display. Harrington offers no
additional argument or showing of evidence to persuade the Court otherwise.
Accordingly, the Court finds that Pinterest has presented undisputed evidence to show that
9 The Davis plaintiff abandoned this argument on appeal. See Davis II, 2023 WL 5695992, at *1.
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it did not have the required right and ability to control the copyrighted work here, and Harrington
failed to respond with facts establishing a genuine issue for trial.
c. Financial Benefit Attributable to Infringing Activity
But regardless, even if Pinterest had the “right and ability to control” the allegedly
infringing display, the Court finds no evidence that Pinterest received “a financial benefit directly
attributable to the infringing activity.” See 17 U.S.C § 512(c)(1)(B).
A directly attributable financial benefit requires that “some revenue [] be distinctly
attributable to the infringing material at issue.” Ventura, 885 F.3d at 613. For example, the Ninth
Circuit has held that a direct “financial benefit” exists where the facts support “an inference that
[the defendant’s] revenue stream is predicated on the broad availability of infringing materials.”
Columbia, 710 F.3d at 1045 (finding “financial benefit” where the defendant marketed his site to
advertisers using infringing material, the amount of infringing material on the defendant’s website
was “vast,” and the defendant “actively induced infringing activity on his sites”). However, the
mere fact that an allegedly infringing display generally increases platform viewership alone is not
enough. Ventura, 885 F.3d at 613 (holding no “directly attributable” financial benefit even though
“the more pornography [the defendant] had, the more users it would attract, and more views would
lead to more advertising revenue”).
Here, Pinterest argues that it does not obtain a financial benefit distinctly attributable to
any specific user-uploaded content by presenting evidence that it does not display advertisements
in its notification messages, let alone in the notification containing Harrington’s work. DeChant
Decl. I ¶ 18; Kramer Decl. Ex. A, at 33:5–7, 44:7–12. As discussed above, Harrington claims this
fact is disputed, but the evidence Harrington presents does not support his position. Harrington
cites to three exhibits to show that Pinterest displays advertisements in its notifications. Reese
Decl. Ex. 3, 6, 15. Two of the exhibits are articles that do not discuss advertisements in email
notifications. Reese Decl. Ex. 3, 6. The remaining exhibit claims to circle “advertisements” in
images of Pinterest’s email notifications; but the circled images do not appear to be
advertisements. Reese Decl. Ex. 15. The evidence shows that the advertisements on Pinterest’s
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platform appear similar to user-uploaded Pins, but they are labeled as “promoted.” See DeChant
Decl. I Exs. 1–2, 4 (screenshots of feeds on Pinterest’s platform). Although the images Harrington
circled contain brand logos, none are labeled as “promoted,” and Harrington has not argued that
advertisements in Pinterest’s emails differ in appearance from advertisements on its platform. But
regardless, even if this evidence showed advertisements appearing alongside notifications, a direct
financial benefit requires facts showing revenue derived specifically from Pinterest’s display of
Harrington’s copyrighted photo. See Ventura, 885 F.3d at 613. Showing that advertisements
generally appear in notifications is not enough.10 See id.
Ultimately, there is no evidence that Pinterest received “a financial benefit directly
attributable to the infringing activity.” 17 U.S.C. § 512(c)(1)(B). Certainly, no evidence suggests
that Pinterest marketed itself to advertisers as containing infringing material, or that Pinterest’s
platform contains “vast” amounts of infringing material. Columbia, 710 F.3d at 1045. Further, no
evidence suggests that Pinterest’s business model depends on “the broad availability of infringing
materials.” Id. Although the purpose of the “entirety of Pinterest’s website is to sell
advertisement space,” Pinterest generates no revenue “directly attributable” to particular works.11
Davis I, 601 F.Supp. 3d at 535.
Accordingly, the Court also finds that Pinterest has presented sufficient evidence that it did
not receive a “financial benefit directly attributable” to the display, and Harrington failed to
respond with facts showing a genuine issue for trial.
IV. CONCLUSION
Based on the foregoing, the Court GRANTS Pinterest’s motion for summary judgment.
The Clerk of Court shall close this case.
10 Indeed, though not evidence in this case, the operative complaint includes one image of
Harrington’s work appearing in an email notification, and it is not accompanied by an
advertisement. TAC ¶ 31.
11 Harrington does not contend that Pinterest receives revenue for displays outside its platform in a
manner different from the displays within its platform.
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IT IS SO ORDERED.
Dated: January 5, 2026
EDWARD J. DAVILA
United States District Judge
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