BWP Media v. Polyvore

BWP Media sued Polyvore, Inc. – the Internet Service Provider behind the website that allows users to share and edit digital photographs – for copyright infringement. In July 2016, the United States District Court for the Southern District of New York held on a motion for summary judgment that the Sony-Betamax case bars all claims for contributory copyright infringement whenever a product or service is “capable of substantial noninfringing uses.” BWP Media appealed to the Second Circuit.

The Second Circuit affirmed the district court’s conclusion that the secondary infringement claims were abandoned.

On direct infringement, the court held that there was a dispute of material fact regarding whether Polyvore created multiple copies of BWP’s photos that were not requested by Polyvore users. On the DMCA safe harbor defense, the circuit rejected BWP’s claim that Polyvore’s stripping of metadata disqualified it from safe harbor protection as an interference with a standard technical measure, but found a dispute of material fact regarding whether additional, unrequested copies of files uploaded by users to Polyvore’s service were made solely to facilitate access by users under 512(c).

The issue of the volitional conduct requirement split the panel, and each of the three judges issued a separate concurring opinion expressing their views on the topic.

Procedural History

Southern District of New York (July 15, 2016)

Second Circuit decision (April 17, 2019)

Status: Status: Second Circuit affirmed in part; vacated in part; and remanded in part. (April 17, 2019)

Amicus Briefs

MPAA (Nov. 22, 2016)