DMCA Safe Harbor Protects Use of Algorithms for Displaying User-Uploaded Works Near Advertising: N.D. Cal. | Practical Law

DMCA Safe Harbor Protects Use of Algorithms for Displaying User-Uploaded Works Near Advertising: N.D. Cal. | Practical Law

In Davis v. Pinterest, Inc., the US District Court for the Northern District of California held that the Digital Millennium Copyright Act (DMCA) safe harbor provision protects Pinterest, Inc.'s creation of variants of plaintiff's works and use of algorithms to select and display variants in proximity to advertisements.

DMCA Safe Harbor Protects Use of Algorithms for Displaying User-Uploaded Works Near Advertising: N.D. Cal.

by Practical Law Intellectual Property & Technology
Published on 09 May 2022USA (National/Federal)
In Davis v. Pinterest, Inc., the US District Court for the Northern District of California held that the Digital Millennium Copyright Act (DMCA) safe harbor provision protects Pinterest, Inc.'s creation of variants of plaintiff's works and use of algorithms to select and display variants in proximity to advertisements.
On May 3, 2022, in Davis v. Pinterest, Inc., the US District Court for the Northern District of California granted Pinterest, Inc.'s motion for summary judgment, holding that Pinterest is entitled to safe harbor protection under Section 512(c) of the Digital Millennium Copyright Act (DMCA) (17 U.S.C. § 512(c)) for the creation of variants of plaintiff's works and the use of algorithms to select and display variants in proximity to advertisements ( (N.D. Cal. May 3, 2022)).
When users upload content to virtual boards on Pinterest's online platform, Pinterest automatically creates variants or copies of the original images of varying sizes optimized for use on its services. Pinterest offers different ways for users to find relevant content, including through the use of promoted pins (content that an advertiser or business pays Pinterest per click or per view to promote on the platform). Pinterest uses algorithms to determine which promoted pins are displayed and how they are displayed to users.
Harold Davis, an artist and professional photographer, sued Pinterest in the US District Court for the Northern District of California, claiming that Pinterest infringed 51 of his copyrighted works by:
  • Creating variants of his works.
  • Using algorithms to select and display the variants in the context of advertising.
Davis argued that Pinterest does not qualify for DMCA safe harbor protection because:
  • Pinterest's infringing activity is not due to storage of Davis's works at the direction of users.
  • Pinterest has the right and ability to control the infringing activity.
  • Pinterest receives a financial benefit directly attributable to the infringing activity.
The court granted Pinterest's motion for summary judgment, protecting Pinterest under the DMCA's safe harbor for service providers storing material on their systems or networks at the direction of users. The court found that:
  • Davis provided no evidence that the creation of variants was infringing activity since:
    • Pinterest does not embed any information or software into the variants for use with its advertising algorithms; and
    • any embedding discussed in Pinterest employees' testimony refers to a term of art in machine learning that means visual and textual cues that machine-learning algorithms glean from pins, including from the image and the user-supplied title and description.
  • Pinterest's creation of optimized copies of user-uploaded works for user-accessibility purposes is the kind of process courts have found to occur by reason of the storage at the direction of a user.
  • Pinterest uses algorithms to promote user access to user-uploaded content.
  • There is no support for Davis's novel theory that the use of algorithms tracking user engagement or displaying advertising near his works on the platform is copyright infringement.
  • Davis did not explain how Pinterest's control over its algorithms and the advertising on its platform qualifies as the right and ability to control infringing activity that would disqualify Pinterest from DMCA safe harbor protection.
  • Davis provided no evidence that Pinterest received any financial benefit distinctly attributable to the alleged infringement since:
    • the algorithms that Pinterest uses for its advertisements are not associated with Davis's works; and
    • neither advertisers nor Pinterest can target advertisements to appear near any specific non-promoted pin.