January 29, 2015
Weil delivered a resounding victory for eBay as to each of the plaintiff’s claims. As to the claims asserted regarding the copies stored on eBay’s servers, the Court first affirmed that eBay’s VeRO (Verified Rights Owner) program meets all the requirements of the DMCA. It then held that the DMCA protected eBay from liability for server copies because “eBay adequately disabled access to [Rosen’s] images when it took down the listings.” As to the claims asserted regarding the magazine photos, the Court confirmed that taking a picture of a physical copyrighted object for the purpose of legitimately selling that object under the first sale doctrine is fair use. The Court recognized that there is “an important public benefit in allowing a thriving second-hand market for copyrighted material, and especially visual copyrighted material.” It also rejected plaintiff’s 109(c) argument, finding that it “would drastically limit the ability of any person to resell any visual copyrighted work except to those in the physical presence of the work.” The Court also found that eBay’s use of Content Delivery Networks to distribute content “is an inevitable and necessary part of using the internet, and ultimately a trivial activity that falls within the protections of the fair use doctrine.” Finally, the Court denied plaintiff’s cross motion for summary judgment because it held that there is a genuine issue of fact as to whether plaintiff owned registered copyrights in the photos at issue.
The Weil team included partner and head of Weil’s IP/Media practice Bruce Rich, partner Randi Singer, counsel Jonathan Bloom, and associates Reed Collins, Olivia Greer, and Jennifer Ramos, all in the Firm’s New York office.