Davis v. Pinterest, Inc.

601 F.Supp.3d 514

Harold DAVIS, Plaintiff,

v.PINTEREST, INC., Defendant.

Case No. 19-cv-07650-HSG

United States District Court, N.D. California.

Signed May 3, 2022

Sue Jung Nam, Michael Robert Reese, Reese LLP, New York, NY, Charles Douglas Moore, Reese LLP, Minneapolis, MN, David Deal, Pro Hac Vice, The Law Office of David C. Deal, P.L.C., Crozet, VA, George Volney Granade, Reese LLP, Los Angeles, CA, for Plaintiff.

Brian M. Willen, Pro Hac Vice, Wilson Sonsini Goodrich & Rosati, New York, NY, David H. Kramer, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 152, 160

HAYWOOD S. GILLIAM, JR., United States District Judge

Pending before the Court are cross-motions for summary judgment. Dkt. Nos. 152, 160. The Court held a hearing on the motions. For the reasons detailed below, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's motion.

I. BACKGROUND

A. Factual Background¹

Plaintiff Harold Davis is an artist and professional photographer. See Dkt. No. 160-2, Ex. 1 ("Davis Depo.") at 9:12–14; 66:15–24; see also Dkt. No. 153-1 at 10:11–16.

Plaintiff contends that Defendant Pinterest, Inc. has infringed the copyrights of 51 of his works by copying and displaying the works on Pinterest's services. See Dkt. No. 56 ("SAC"), Ex. A; see also Dkt. No. 114-1 at 3 ("Plaintiff agreed to stipulate the 51 works identified in the SAC were the Works in Suit."). Pinterest operates an online platform—accessible through a mobile application and website—that allows users to upload images and videos to virtual "boards." See Dkt. No. 156 ("DeChant Decl.") at ¶¶ 2–3. To understand the alleged copyright infringement in this case, it is essential to understand how Pinterest operates. The Court therefore provides a brief overview.

i. Pinterest's Online Platform

When a user uploads content to Pinterest, he is prompted to create a title and description for the image or video, and is asked to provide a "destination link" to a third-party website. See id. at ¶¶ 5–6. The content that a user uploads—including the title, description, and destination link—create a "visual bookmark" that Pinterest refers to as a "Pin." See id. at ¶ 7. Pinterest does not direct users to upload specific content. See id. at ¶¶ 2, 4. And because users upload the content, it is possible that a single image may be used by many different users to create distinct "Pins." See id. Pinterest acknowledges that it has billions of images on its site. Id. And given this volume, Pinterest does not manually review the content that users upload. Id.

The image that a user uploads is called the "original." Dkt. No. 160-3, Ex. 2 ("DeChant Depo.") at 29:2–4. Although Pinterest stores the originals on its servers, it does not display originals on its website or mobile application. See id. at 29:6–30:5, 46:16–47:13, 50:9–13. Rather, when a user uploads an image, Pinterest automatically creates copies of the original, which it calls "variants." Id. at 30:24–32:1, 47:14–16, 48:10–21. According to Pinterest, it does so primarily because the images that users upload are "usually not optimized for Pinterest." See id. at 82:11–25. Pinterest "want[s] images to load fast ... so Pinners w[ill] have a delightful experience." Id. Pinterest therefore "generate[s] highly optimized images" of varying sizes for use on its services. Id. ; see also id. at 73:4–20, 76:3–5 (noting variants are given different names internally based on their pixel width and/or height); DeChant Decl. at ¶¶ 8–10.

Pinterest offers different ways for users to access Pins on its website and mobile application. See DeChant Decl. at ¶¶ 12–18. When a user first logs into his Pinterest account, he will see his "personal home feed," or a grid-view of smaller-sized Pins. See id. at ¶ 13. If a user clicks on any of these Pins, he will be taken to another page that includes a larger view of the Pin, as well as the title, description, and destination link for that Pin. See id. at ¶ 12. Pinterest automatically generates a user's home feed with machine-learning algorithms based on multiple inputs, including Pins with which the user has interacted in the past; boards the user has created; searches the user has run; and the people, topics, and boards the user "follows" on the website or mobile application. See id. at ¶¶ 12–13. These algorithms influence both the content and layout of the feed. See id. According to Pinterest, users have some control over the content they see in their feed because they can remove specific Pins or edit their preferences for the content they will see. Id. at ¶ 13. Below is an example of this home feed:

See DeChant Decl., Ex. 1.

Pinterest also offers "related Pins feeds," which similarly use algorithms to predict what Pins will be most relevant to the user based on his past activity on the service. See DeChant Decl. at ¶¶ 14–15. These feeds are typically shown under the larger view of the Pin that a user has clicked on, as illustrated below. See id. Id. , Ex. 2. Pinterest states that users are able to remove pins from these feeds, which refines the algorithms to further tailor the feeds to the user. See id. Pinterest also offers a search function, which allows users to search for content on its service. See id. at ¶ 16. Again, algorithms generate a feed with search results based on both the user's search query and his past activity on the service. Id. Pinterest states that users can likewise remove Pins from the search results, which helps the algorithms tailor future search results. Id.

ii. Advertising

Pinterest does not charge users for its services. See id. at ¶ 2. Rather, Pinterest generates revenue through third-party advertising across these various "feeds." See id. at ¶¶ 2, 17. An advertiser or business can create content, and then pay Pinterest to promote that content on the website and mobile application. See DeChant Depo. at 96:16–25; see also Dkt. No. 160-4, Ex. 3 ("Galgon Depo.") at 77:2–19. Advertisers may pay Pinterest per click or per view for these "promoted Pins." See Galgon Depo. at 45:22–48:2. As with "organic Pins" (i.e. , the content that users rather than advertisers upload), Pinterest creates variants and uses algorithms to determine which promoted Pins are displayed and how they are displayed to users in their feeds. See id. at 28:3–31:22, 59:8–60:16, 65:6–66:7, 66:25–67:23. In this way, Pinterest states that it tries to ensure that even promoted Pins are relevant to the user. See, e.g., id. at 28:11–20. However, users cannot opt out of seeing advertisements in their feeds. See id. at 45:6–12. These feeds, therefore, contain a combination of both organic Pins and promoted Pins.

Pinterest also sends notifications to its users by email, in the mobile application, and through push notifications. See DeChant Decl. at ¶ 18. According to Pinterest, these notifications alert users to content that Pinterest's algorithms have identified as being of possible interest to the user. See id. Pinterest also uses machine learning models to determine the frequency, content, and timing of notifications for users. See Dkt. No. 160-13, Ex. 12. Pinterest sends "billions of notifications ... every week to users," and these notifications "drive a significant portion of monthly active users." See Dkt. No. 160-12, Ex. 11. Users, however, may turn off these notifications if they wish. See DeChant Decl. at ¶ 18. And these notifications do not contain advertisements. See id.

iii. Allegations

Plaintiff has clarified that in this case, he does not challenge users uploading his works or saving them to their boards. Dkt. No. 171 at 5, 14 ("[T]he images at issue in this case are not the Pins of Plaintiff's Works that users uploaded and displayed on their personal boards."); Dkt. No. 160 at 1 ("Mr. Davis has no quarrel with individual users of Pinterest (i.e. , ‘Pinners’), who display Mr. Davis’ Works on their Boards (i.e. , Pinterest's virtual bulletin boards) for personal purposes because they admire or are inspired by the Works."), at 21–22 (confirming Plaintiff does not contest "the uploading of content by Pinterest users to their boards, i.e. , Pins"). Rather, he challenges the public display of his works in proximity to or in the same feed as promoted Pins. Dkt. No. 171 at 5, 14; see also Dkt. No. 160 at 1, 26–27. For example, in the screenshot below, Plaintiff's work, "Kiss from a Rose," is displayed in the top left corner of this feed. Next to it is a promoted Pin for an art print called "White Tea Roses by Neicy Frey." Dkt. No. 160-11, Ex. 10.

Id. This promoted Pin is labeled as "Promoted by Chairish." Id. Plaintiff contends that this constitutes "unauthorized commercial use" of his works. See, e.g. , Dkt. No. 160 at 1. Plaintiff also challenges the display and distribution of his works in emails and push notifications to users. See Dkt. No. 160 at 1.

As explained in more detail in Section III.A.i below, Plaintiff does not identify the exact number of times he contends Pinterest infringed his copyrights. See Dkt. No. 160 at 10. But he asserts that "it is reasonable to extrapolate the actual number of infringements by Pinterest during the three-year statute of limitations period to be in the hundreds of thousands, if not millions." Id. He notes, for example, that just one of his works, "Duet of Daffodils," appeared on Pinterest's website 4,676 times over the course of just two weeks. See Dkt. No. 160-1 ("Moore Decl.") at ¶¶ 21–22, 28.

B. Procedural Background

Plaintiff filed his initial complaint in November 2019, alleging both direct and contributory copyright infringement. See Dkt. No. 1. Defendant moved to dismiss Plaintiff's contributory infringement claim. See Dkt. No. 17. In response, Plaintiff filed the first amended complaint in March 2020. See FAC. Defendant again moved to dismiss the contributory infringement claim, and the Court granted the motion in July 2020...