Wolk v. Photobucket.com, Inc.

12-420-cv
Wolk v. Photobucket.com, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 17th day of June, two thousand fourteen.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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SHEILA WOLK,
Plaintiff-Appellant,
v. 12-420-cv
PHOTOBUCKET.COM, INC.,
Defendant-Appellee,
KODAK IMAGING NETWORK, INC.,
EASTMAN KODAK COMPANY,
Defendants.*
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FOR APPELLANT: Sheila Wolk, pro se, New York, New York.
FOR APPELLEE: Kenneth P. Norwick, Norwick, Schad & Goering, New
York, New York; Mark Lerner, Satterlee Stephens Burke
& Burke LLP, New York, New York.
*
The Clerk of Court is directed to amend the official caption as shown above.
Appeal from a judgment of the United States District Court for the Southern District
of New York (Robert W. Sweet, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on January 31, 2012, is AFFIRMED.
Plaintiff Sheila Wolk appeals pro se from an award of summary judgment in favor of
defendant Photobucket.com, Inc. (“Photobucket”) on Wolk’s claims of copyright
infringement. Specifically, Wolk challenges the district court’s determination that
Photobucket is entitled to the safe harbor protection of the Digital Millennium Copyright Act.
See 17 U.S.C. § 512(c). We assume the parties’ familiarity with the facts and the record of
prior proceedings, which we reference only as necessary to explain our decision to affirm.
We review an award of summary judgment de novo, viewing the evidence in the light
most favorable to the non-moving party and drawing all reasonable inferences in that party’s
favor. See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 30 (2d Cir. 2012). Summary
judgment is appropriate only “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); accord Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691
F.3d 134, 141 (2d Cir. 2012).
Upon such review, we conclude, substantially for the reasons stated by the district
court in its published opinion, see Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d
724 (S.D.N.Y. 2012), that summary judgment was properly awarded. Insofar as Wolk urges
otherwise by arguing that Photobucket should have done more to police its website for
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infringing material, her assessment fails in light of Viacom International, Inc. v. YouTube,
Inc., where this court explained that § 512(c)’s safe harbor applies to a service provider’s
otherwise infringing material caused “by reason of the storage at the direction of a user” so
long as the service provider, among other things, (1) properly removes infringing activity
upon gaining subjective knowledge of infringement or of “facts that would have made the
specific infringement objectively obvious to a reasonable person,” (2) bans repeat offenders,
and (3) does not have the “right and ability to control” infringing activity to which a
“financial benefit” is “directly attributable.” 676 F.3d at 30–41 (internal quotation marks
omitted). This case falls within these parameters.
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We have considered Wolk’s remaining arguments and conclude that they are moot,1
forfeited,2 or without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
1
Wolk appeals from the district court’s denial of her motion for leave to amend her
complaint to add claims against defendants Kodak Imaging Network, Inc. and Eastman
Kodak Company (collectively, “Kodak”), which had entered into an agreement with
Photobucket that allowed users to print images obtained from Photobucket’s website. As we
previously dismissed Wolk’s appeal from the district court’s grant of summary judgment in
favor of Kodak because all claims “against Kodak were discharged by the confirmation of
the reorganization plan in bankruptcy proceedings,” Order, Nov. 13, 2013, ECF No. 130, we
deny as moot Wolk’s challenge to the denial of her motion to amend.
2
Insofar as Wolk asserts that Photobucket improperly used her works for its promotional
activities, we decline to address this argument because it was not properly presented to the
district court. See Zalaski v. City of Hartford, 723 F.3d 382, 395–96 (2d Cir. 2013)
(declining to address argument forfeited in district court).
4