Court: District Court, S.D. New York; January 2, 2012; Federal District Court
Seven motions are currently before the Court related to a case initiated by pro se Plaintiff Sheila Wolk against Kodak Imaging Network, Inc., Eastman Kodak Company, and Photobucket.com, Inc. Wolk seeks both partial and full summary judgment against the Kodak Defendants and Photobucket, while the Kodak Defendants and Photobucket have filed their own motions for summary judgment. Additionally, Wolk has submitted motions to amend her complaint, to admit expert testimony, and to investigate alleged perjury by the Defendants. The Court has denied Wolk's motions for partial summary judgment, summary judgment against Photobucket, to amend, to admit expert testimony, and to investigate, while granting the Defendants' motions for summary judgment.
Wolk's initial complaint, filed on May 19, 2010, and amended on July 6, 2010, alleges copyright infringement and interference with business relationships, seeking declaratory judgment and an injunction. As an independent artist, Wolk claims that her works were used without authorization on Photobucket's site. The complaint includes seven counts against the Defendants, which involve direct and contributory copyright infringement and interference with advantageous business relations. Previous Court rulings include the denial of Wolk's Emergency Motion for a Preliminary Injunction due to lack of demonstrated likelihood of success and the denial of her motion to compel documents for her expert witness based on insufficient qualification. However, the Court allowed Wolk to seek the qualification of her proposed expert under Daubert standards and granted extensions for discovery and expert report submissions.
On April 11, 2011, Wolk's motion to strike deposition testimony from the Plaintiff's licensing agent and expert information was denied by the Court, citing no basis under the Rules of Civil Procedure. Seven motions remain pending, including the Plaintiff's April 8, 2011, motion to investigate alleged perjury by the Defendants, which received opposition from both Kodak Defendants and Photobucket on April 19, 2011. Wolk filed for partial summary judgment against Kodak on May 4, 2011, prompting a cross-motion for summary judgment from Kodak on all counts. These motions were fully submitted by July 27, 2011. The Plaintiff also sought to amend her complaint on June 26, 2011, facing opposition from Kodak. On September 13, 2011, Wolk moved to admit expert testimony from Dr. Robert Sarvis, with full submission marked on October 28, 2011. Photobucket filed for summary judgment on September 23, 2011, and the Plaintiff responded with a cross-motion against Photobucket on October 15, 2011, with submission completed by November 30, 2011.
Wolk, a professional artist for over 40 years, relies solely on the sale and licensing of her artwork, which is registered with the U.S. Copyright Office. Photobucket is a user-generated content platform allowing users to upload photos and videos, earning revenue mainly from advertising. Kodak, founded in 1889, acquired Ofoto, Inc. in 2001, which later became Kodak Imaging Network and KODAK Gallery, a service for users to manage and print their digital photos. An Agreement between Photobucket and Kodak Imaging Network commenced on January 21, 2009, enabling users to print photos via KODAK Gallery, though Kodak was not a party to this Agreement, and Photobucket claims it did not control the Kodak Defendants' operations related to this agreement.
Photobucket asserts that it did not influence users' decisions to access Kodak Defendants' services or select images for those services. Wolk challenges this view, claiming that Photobucket considered its relationship with Kodak Imaging Network as a partnership. Photobucket disputes Wolk's assertion of having control over Kodak Defendants’ activities and clarifies that its financial benefits from the partnership were not dependent on the specific images submitted by users, as payments were uniform regardless of content. Under their Agreement, Kodak Imaging Network was obligated to pay Photobucket 50% of net profits, defined as total monthly gross revenue minus certain expenses.
Photobucket's Terms of Use require users to ensure that their content does not infringe on others' rights and that users must not upload any infringing material. While Photobucket mandates agreement to these Terms for registration, it does not ensure users read them. The company claims compliance with the Digital Millennium Copyright Act (DMCA), offering mechanisms for copyright owners to report infringements and facilitating content removal through a clear process outlined on its website. Users can report inappropriate content via a link on each image page, which directs them to the relevant copyright policy and provides instructions for submitting take-down notices.
Instructions require identification of the infringing material, including the URL on the Photobucket website that necessitates access disablement. Photobucket reviews each take-down notice for specific URLs, as it lacks the capability to search through its extensive collection for copyright violations without this information. If URLs are missing, Photobucket contacts the copyright holder for clarification. The Plaintiff, Wolk, acknowledges her limited computer knowledge but has successfully reported alleged infringements with URLs since May 2008 and operates an online retail store. Initially, she lacked understanding of URLs. Upon receiving valid take-down notices, Photobucket removes the infringing content and notifies both the copyright holder and the user. The site bans repeat offenders. Wolk claims Photobucket's software facilitates the circumvention of copyright protections, a statement that Photobucket disputes, clarifying that editing tools are not intended to defeat watermarks. Wolk also asserts that over 70% of certain search results comprise copyrighted images, while Photobucket contends that search results depend on user-uploaded information. Wolk alleges that Photobucket financially benefited from the infringement of her works, a claim disputed by Photobucket, which states its revenue is unaffected by the infringing nature of images. Wolk maintains that her copyrighted material has been copied and modified without her consent by users, and products utilizing her images were ordered by associates related to her expert witness, Dr. Robert Sarvis. Photobucket does not contest that products were ordered but notes no such products were made before the Complaint was filed.
Kodak Imaging Network's standard procedure involves a visual review of each image product before production, which the Kodak Defendants contest. They assert that three orders involving Wolk's images were fulfilled by third-party vendors without any Kodak employee intervention. Wolk claims her images were used without her permission by Photobucket and Kodak Defendants, who allegedly transferred her images to subcontractors for production. Photobucket counters that it does not transform images but allows users to select them for printing, with no knowledge of the images selected or how they were processed by Kodak. Wolk became aware of her images being copied and modified on Photobucket in late 2007 or early 2008 but did not notify them of infringement until May 9, 2008. When she did report an infringement, she utilized the option to report copyright violations, including a notice for her painting "Sanctuary." In her reports, she stated that her artworks are copyrighted and expressed her ownership. Photobucket claims to have removed the images upon receiving Wolk's notice but also indicated that her initial notices did not meet DMCA requirements and provided her with guidance on how to submit a compliant notice.
On May 12, 2008, Wolk provided Photobucket with revised notices detailing URLs of alleged copyright infringements, which Photobucket confirmed it had removed. On January 11, 2010, Gordon P. Black of Applejack Art Partners submitted a take-down notice to Photobucket, claiming exclusive licensing rights to Wolk's artwork and listing 12 URLs for removal. Photobucket responded, stating it needed direct links to the images for removal, but claims it never received further communication from Black. Wolk's initial complaint, filed on May 19, 2010, included 15 paintings, with at least six not previously reported to Photobucket, and did not provide URLs. An Amended Complaint filed on July 2, 2010, added seven more titles and noted that Wolk had supplied additional URLs after the initial complaint, totaling 128 specific URL addresses for alleged infringements. Photobucket's counsel acknowledged removing 102 of these images but sought further information on 21, to which Wolk did not respond. On July 17, 2010, Wolk emailed Photobucket's counsel with over 700 additional URLs, and on July 22, Photobucket confirmed the removal of all specified images. Wolk reported finding approximately 3,000 infringements on the platform, indicating many were duplicates by individual users. Photobucket acknowledged these findings but stated it had not received prior notice of the additional infringements before the lawsuit, asserting compliance with DMCA notices. Wolk accused Photobucket of failing to address repeat infringers, identifying 22 such repeat offenders.
Wolk is proceeding pro se, and her submissions are evaluated under more lenient standards compared to formal pleadings submitted by attorneys, as established in Hughes v. Rowe and Haines v. Kerner. Courts are required to liberally interpret pro se pleadings to raise the strongest possible arguments. However, frivolous filings will not be excused, and pro se litigants must still comply with procedural and substantive law.
For motions to amend, the standard is that leave should be "freely given when justice so requires" according to Federal Rule of Civil Procedure 15(a)(2), but the district court has discretion to deny this based on factors such as undue delay, bad faith, or prejudice to the opposing party. While mere delay does not justify denial, other considerations, such as the passage of a deadline set by a scheduling order, may invoke Rule 16(b), which requires a showing of good cause for amendments after the deadline. The Second Circuit emphasizes that good cause is assessed based on the diligence of the moving party and is not met if the proposed amendment relies on information known prior to the deadline.
Plaintiff demonstrated diligence in seeking leave to amend within two months of uncovering facts for a new cause of action, contrasting with a case where nearly five months of delay indicated a lack of diligence. While the moving party's diligence is central to a Rule 16(b) good cause evaluation, courts may also consider potential prejudice to defendants if the amendment would necessitate significant additional discovery or delay resolution.
Regarding expert testimony, a district court may admit evidence from qualified experts if their specialized knowledge aids in understanding the evidence or determining relevant facts. The court performs a two-part examination to ensure the expert's methodology is reliable and that their testimony is necessary for the jury's comprehension. Testimony on matters easily understood by a jury should not be admitted.
For summary judgment, it is granted when there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. The court assesses if the evidence presents sufficient disagreement requiring a jury's evaluation or if it overwhelmingly favors one party. The burden rests on the party seeking summary judgment to prove the absence of material fact issues. The court must view evidence favorably toward the non-moving party but cannot accept merely speculative or conclusory allegations as a defense against summary judgment.
Plaintiff's motion to amend the complaint has been denied due to failure to meet the required standards. Under Fed. R. Civ. P. 15(a), a court may deny motions to amend for reasons such as undue delay, bad faith, or undue prejudice to the opposing party. However, since Wolk's motion was filed on June 26, 2011, after the November 30, 2010 deadline established by the scheduling order, it falls under Fed. R. Civ. P. 16(b), which necessitates a showing of "good cause" for modification. Wolk's proposed amendment seeks to retract Count VII, which alleged interference with business relations, and introduce Count VIII for unfair competition, claiming that Kodak Gallery and the Kodak Defendants unlawfully copied and sold her work, directly competing with her products. She claims damages of $1,500,000 and seeks $6,000,000 in punitive damages.
The court found that Wolk did not demonstrate good cause, as the facts underlying the unfair competition claim were known to her before the deadline. Furthermore, even applying the more lenient Rule 15(a) standard, the motion was deemed improper since it was made after the deadline for amending pleadings, after motions for summary judgment were filed, and after the discovery deadline had passed. Citing precedents, the court concluded that allowing an amendment under these circumstances would be inappropriate.
Plaintiffs' request to amend their complaint was denied due to significant delays, with nearly two years having elapsed since the original filing, the completion of discovery, and defendants' summary judgment motions already filed. The district court found that allowing an amendment at this stage would be inappropriate, as plaintiffs did not satisfy the "good cause" standard under Fed. R. Civ. P. 16(b) or the more lenient standard under Fed. R. Civ. P. 15(a).
Additionally, the plaintiff's motion to admit expert testimony from Dr. Robert Sarvis was also denied. Dr. Sarvis, who holds a Doctor of Business Administration and has relevant teaching and consulting experience, was proposed as an expert to discuss statistical analysis and its implications for the case. However, the motion lacked a written report or any formal documentation of Dr. Sarvis's opinions. Although his qualifications were contested by the defendants, the court noted the liberal standard for qualifying expert witnesses but ultimately concluded that the absence of sufficient information for a Daubert analysis, especially with discovery closed, warranted denial of the motion. Thus, both the motion to amend the complaint and the motion to admit expert testimony were denied.
The Plaintiff's failure to submit an expert report by the April 30, 2011 deadline is excused due to a pending motion to compel document production for Dr. Sarvis, yet the Plaintiff had sufficient time afterward to either serve a report or request extensions. Following the Court's August 25, 2011 order, which allowed until September 15, 2011, for the Plaintiff to file a motion to admit Dr. Sarvis as an expert under Daubert, no report was served. Under Daubert, the trial court must ensure that expert testimony is based on a reliable foundation and is relevant. The proponent of expert testimony must demonstrate, by a preponderance of the evidence, compliance with Rule 702's admissibility criteria, which include the expert’s qualifications, the basis of the testimony, and its application of reliable principles to the case facts.
Daubert also outlines factors for assessing the reliability of expert testimony, such as testability of the theory, peer review, error rates, and general acceptance in the scientific community. In this case, the Plaintiff relies solely on descriptions of Dr. Sarvis' conclusions without detailing his methods or providing evidence of their acceptance or reliability in the scientific community. The motion lacks necessary factual support for Dr. Sarvis' methodology, including peer reviews or data to substantiate its reliability. Therefore, the Plaintiff's motion does not meet the requirements of Fed. R.Evid. 702 or Daubert, resulting in its denial.
Additionally, the Plaintiff's motions for partial summary judgment against the Kodak Defendants and for summary judgment against Photobucket are denied, while the Defendants’ motions for summary judgment are granted. The Kodak Defendants opposed the Plaintiff's partial summary judgment motion and filed a cross-motion for summary judgment, while Photobucket sought dismissal of all claims, leading to the Court's rulings as stated.
The Kodak Defendants’ motion for summary judgment has been granted. Wolk sought partial summary judgment against them, asserting they infringed her copyrights, claiming they are not entitled to DMCA safe harbor protections, alleging willful infringement, and seeking statutory damages under 17 U.S.C. § 504(a)(2)(c)(1) and (c)(2) per work infringed. The complaint includes four counts: Count I for a declaratory judgment on copyright infringement, Count II for a permanent injunction, Count VI for direct liability of Kodak Gallery and the Kodak Defendants, and Count VII for interference with business relations. Wolk has waived her claims for tortious interference against the Kodak Defendants, leaving the issue of their potential liability for direct infringement of her copyrighted images.
Wolk identified ten instances where the Kodak Defendants allegedly reproduced, produced derivative works, and distributed her copyrighted images without permission or a valid license, arguing that this activity constitutes direct infringement under the Copyright Act, which grants exclusive rights to copyright holders. She contends that the Kodak Defendants' actions go beyond mere passive involvement, classifying them as active participants in copyright infringement, as established in relevant case law. Unlike cases where only a single copy was made, Wolk argues that the Kodak Defendants produced multiple copies, modifying her artwork for specific products.
Wolk further asserts that the Kodak Defendants do not qualify for DMCA safe harbor protections as they engaged in direct infringement rather than incidental acts typical of service providers. Additionally, she claims Eastman Kodak is vicariously liable due to Kodak Imaging Network being its wholly-owned subsidiary. Wolk seeks statutory damages on a per-image basis, noting that such damages are warranted when actual damages are difficult to ascertain, which is the case here due to the Kodak Defendants' failure to maintain adequate records for damage calculation.
Wolk argues that the Kodak Defendants are strictly liable for copyright infringement because they cannot prove they were unaware of or had no reason to believe their actions constituted infringement. This establishes their conduct as "willful" under 17 U.S.C. § 504(c)(2), allowing for increased statutory damages up to $150,000 per infringing work. Wolk supports this by noting that after the lawsuit was filed, Dr. Sarvis and his assistant were still able to purchase products containing Wolk’s copyrighted images. According to Second Circuit precedent, if sophisticated defendants knew or should have known their actions were infringing, their infringement is classified as willful, as seen in Twin Peaks Prods. Inc. v. Publications Int’l, Ltd.
Wolk emphasizes the need for statutory damages to deter infringement and protect artists with limited resources. To prove copyright infringement, a plaintiff must demonstrate ownership of a valid copyright and unauthorized copying or violation of exclusive rights under the Copyright Act. Citing Byrne v. British Broad. Corp., Wolk notes that direct liability requires “volitional conduct” that causes the infringement, which was explored in Cartoon Network v. Cablevision. In that case, the Second Circuit ruled that merely owning a machine used for illegal copying does not establish direct liability; there must be a direct causal link to the infringement.
Applying this principle to the Kodak Defendants, Wolk fails to show evidence of volitional conduct necessary to establish direct liability. She presents two theories of infringement: that the Kodak Defendants reproduced her images on products and that an electronic preview page is generated on their website when users order products with images from Photobucket. However, the evidence indicates that the transfer of information to the fulfillment vendor is done automatically through a computer system, and the display of images on the Kodak Gallery website is also automated, suggesting no direct infringement by the Kodak Defendants.
Reproduction, display, or transmission of Plaintiffs' images through the KODAK Gallery website occurs automatically without human intervention by Kodak employees, establishing that no volitional act is present. The automated nature of copying images into product simulations and transmitting them to fulfillment vendors is not a volitional act, following precedents set in Disney Enterprises Inc. v. Hotfile Corp. and CoStar Group Inc. v. LoopNet, Inc. Consequently, the Kodak Defendants are not liable for direct copyright infringement. As a result, the court does not need to address whether they qualify for the DMCA’s “safe harbor,” the willfulness of the infringement, or Wolk's entitlement to damages. Additionally, since the Plaintiff has not established liability against Kodak Defendants, the claim of vicarious liability against Eastman Kodak is also moot.
Regarding Photobucket, Wolk's cross-motion for summary judgment is denied, while Photobucket’s motion for summary judgment is granted on all counts. The five counts against Photobucket include requests for declaratory judgment, permanent injunction, contributory copyright infringement, vicarious copyright infringement, and direct infringement. Photobucket is not liable for copyright infringement as it qualifies for the DMCA’s “safe harbor” provisions, having met the necessary threshold requirements: being a service provider, implementing a policy for terminating repeat infringers, and not interfering with copyright protection measures.
Photobucket is classified as a "service provider" under the Digital Millennium Copyright Act (DMCA), meeting the definitions outlined in 17 U.S.C. 512(k). The DMCA provides two definitions: one focusing on entities facilitating digital communications without content modification, and the other on online service and network access providers. Photobucket qualifies for the DMCA's "safe harbor" protections due to its compliance with 17 U.S.C. 512(c) and the broader definition in 17 U.S.C. 512(k)(l)(B). Similar services like YouTube and Veoh have also been recognized as service providers under the DMCA.
To maintain safe harbor status, a service provider must adopt and reasonably implement a policy for terminating accounts of repeat copyright infringers, inform users of this policy, and implement it effectively. Wolk's claims that Photobucket fails to enforce its policy were countered by evidence showing that Photobucket has a public policy for handling takedown notices, actively removing infringing material upon receipt of such notices. Additionally, Photobucket complies with the requirement to accommodate standard technical measures under 17 U.S.C. 512(i)(l)(B), affirming its eligibility for safe harbor protections.
Standard technical measures, as defined by the Court in Io Group, refer to practices employed by copyright owners to protect their works, developed through a consensus among copyright holders and service providers. These measures must be accessible on reasonable, non-discriminatory terms without imposing significant costs on service providers. Wolk contends that Photobucket's provision of editing tools that allow users to remove copyright watermarks disqualifies it from DMCA safe harbor protections. He argues these tools are essential for Photobucket's business model, as they enable users to access copyrighted material for free. However, the plaintiff does not claim that Photobucket promotes the circumvention of copyright protections. The presence of watermarks indicates that Photobucket complies with standard technical measures. The tools in question are utilized by users, not Photobucket itself, to bypass copyright protections, thus not affecting its eligibility for safe harbor under 17 U.S.C. 512(c). This statute provides that a service provider is not liable for copyright infringement if it lacks actual knowledge of infringing activities, is not aware of facts indicating such activities, or acts promptly to remove infringing materials upon gaining knowledge. Additionally, to benefit from these protections, the service provider must not receive direct financial benefits from the infringing activities and must have a designated agent for receiving infringement notifications.
Service providers must publicly disclose specific contact information for their designated agents, including name, address, phone number, and email, and may provide additional contact details as deemed appropriate by the Register of Copyrights. The Register maintains a directory of these agents, accessible both online and in print, possibly requiring a fee for service providers to cover maintenance costs. Photobucket has met the statutory requirements for liability protection under the DMCA, demonstrating that it lacked actual knowledge of infringing activities and acted promptly to remove infringing materials upon acquiring sufficient information. To qualify for the DMCA safe harbor provision, a service provider must not have actual knowledge of infringement and must act expeditiously if it becomes aware of infringing activities. Photobucket did not have evidence of either actual or constructive knowledge regarding the alleged copyright infringement by Wolk.
For a notice to be DMCA-compliant, it must include six specific elements: a signature from an authorized representative, identification of the copyrighted work, details of the infringing material, contact information for the complaining party, a statement of good faith belief regarding unauthorized use, and a declaration of accuracy under penalty of perjury. Wolk submitted fifteen notices of infringement to Photobucket for nine works, but eleven of these notices were not compliant with the DMCA. Wolk contends that these notices should be interpreted as sufficient for identifying all alleged infringements of the nine works on the site, but this interpretation is incorrect. Compliance requires clear identification of the infringing material, as specified in the DMCA.
A service provider must receive reasonable notice of alleged copyright infringement, including sufficient detail to locate the material and a good faith belief that the use is unauthorized, as outlined in 17 U.S.C. § 512(c)(3)(A). In the Viacom case, the court ruled that a service provider like YouTube cannot be held liable for failing to remove content not specifically identified in DMCA notices. Similarly, Photobucket cannot be held liable for not removing images without proper notice from the Plaintiff. Wolk’s proposal for a single notice covering all instances of an image is deemed impractical since Photobucket could inadvertently block licensed content. Notices lacking specific location details do not confer actual knowledge to the service provider. Previous rulings assert that if a copyright holder's notice does not substantially comply with the DMCA requirements, it cannot be considered in determining the provider's knowledge of infringement. Photobucket has acted promptly to remove infringing material when validly notified and has also removed content upon receiving non-compliant notices. Thus, Photobucket qualifies for the “safe harbor” under 17 U.S.C. § 512(c) as it lacked knowledge of infringement and acted swiftly to remove infringing content. Additionally, Photobucket does not have the right or ability to control infringing activity and does not receive a direct financial benefit from it, further supporting its eligibility for safe harbor protection.
Photobucket does not receive a direct financial benefit from infringing activities, as established in Io Grp. and Corbis cases. The concept of having the "right and ability to control" infringing activities extends beyond mere removal of content; it requires proactive measures such as prescreening, which is not feasible for Photobucket given the volume of daily uploads. There is no evidence that Photobucket’s business model profits from specific infringements or that it has knowledge of which images are being printed by users through Kodak Defendants. Consequently, Photobucket is not subject to the "safe harbor" protections of 17 U.S.C. § 512(c)(1)(B) because it lacks both control over infringing activities and the financial benefit directly tied to such activities. Additionally, Photobucket has consistently responded to valid notifications of claimed infringement by removing the alleged infringing material promptly, even when notices were not compliant with DMCA requirements. Photobucket has also designated an agent to receive DMCA notifications, fulfilling another condition for safe harbor eligibility.
The statute mandates that service providers, such as Photobucket, must make available specific contact information for their designated copyright agent, including a name, address, email, and fax number, in a publicly accessible location. Although Photobucket's provided contact details lack a name and phone number, the inclusion of an address, email, and fax is deemed sufficient under the statutory requirement to designate an agent.
Photobucket is not obligated to monitor its website for copyright infringements, as per the DMCA, which specifies that a service provider’s safe harbor protection is not contingent upon actively seeking out infringing activity. The DMCA explicitly states that it does not require such monitoring for the applicability of safe harbor provisions. Consequently, Photobucket fulfills the statute's requirements and benefits from safe harbor protections, shielding it from liability for copyright infringement due to user-uploaded content.
Additionally, claims of contributory and vicarious infringement against Photobucket have been dismissed since the DMCA's safe harbor provision applies to these secondary infringement claims as well. The court grants summary judgment in favor of Photobucket, confirming its eligibility for protection under 17 U.S.C. 512(c) against all allegations of direct and secondary copyright infringement. Furthermore, the Copyright Act does not explicitly impose liability on a defendant for infringement committed by another party.
Liability for copyright infringement can extend to parties that did not directly engage in infringing activities through contributory or vicarious infringement. Contributory infringement requires a party to intentionally induce or materially contribute to direct infringement, while vicarious infringement applies when one profits from direct infringement without taking steps to prevent it. For secondary liability to exist, there must be a primary infringer. In the case of Wolk's complaint against Photobucket, the plaintiff alleges contributory infringement due to Photobucket's relationship with the Kodak Defendants. To succeed, the plaintiff must show that Photobucket had knowledge of the infringing activity and materially contributed to it. Merely providing means for infringement is not sufficient; substantial participation and knowledge of the infringing acts are required. The evidence presented does not support Wolk's claim, as there is no indication that Photobucket knowingly passed along infringing images or collaborated with the Kodak Defendants. Instead, Photobucket was simply a platform used by unidentified users for potentially infringing activities.
The Plaintiff's claims for contributory infringement against Photobucket are unsupported due to a lack of evidence showing that Photobucket encouraged or facilitated copyright infringement, which differentiates this case from cited precedents involving peer-to-peer websites. The Plaintiff must demonstrate Photobucket’s actual or constructive knowledge of specific infringing activities, but the notices sent by the Plaintiff do not meet this requirement. Consequently, the claim for contributory infringement is deemed insufficient.
Regarding vicarious infringement, the Plaintiff failed to provide evidence that Photobucket had the right and ability to supervise the alleged infringing actions or that it had knowledge of such activity. Therefore, the allegation of vicarious infringement is dismissed.
The court concludes by denying the Plaintiff's motions for partial summary judgment against the Kodak Defendants, summary judgment against Photobucket, amendment of the complaint, admission of expert testimony, and investigation into alleged perjury. The Defendants' motions for summary judgment are granted. The Plaintiff's motion alleging false information in a defense witness's affidavit is also denied due to a lack of supporting evidence. Lastly, while secondary liability can be established under certain circumstances, the Plaintiff has not asserted such claims against the Kodak Defendants, suggesting that only direct infringement is alleged against them.
