Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge Raymond P. Moore
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`Case No. 13-cv-00624-RM-KMT
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`JAMES S. GRADY,
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`Plaintiff,
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`v.
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`SAMUEL IACULLO,
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`Defendant.
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`______________________________________________________________________________
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`OPINION AND ORDER
`______________________________________________________________________________
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`The Court hereby VACATES its Opinion entered April 15, 2016 (ECF No. 61), and enters
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`this Opinion in its place. The only changes are: (1) the deletion of language that plaintiff’s case
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`could have been dismissed due to his failure to present evidence to support his claims (id. at 14); and
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`(2) the deletion of language that plaintiff’s case would be dismissed if he failed to file a motion for
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`summary judgment after the conclusion of the re-opened discovery period (id. at 17).
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`**********
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`On March 8, 2013, plaintiff James Grady (“plaintiff”) filed a Complaint against Samuel
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`Iacullo (“defendant”), alleging that defendant infringed plaintiff’s copyrights in numerous
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`photographs and videos “of professional swimwear models, all of [who] are minors under the age
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`of 18,” and his trademark in “TrueTeenBabes.” (ECF No. 1). Plaintiff sought declaratory and
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`injunctive relief, statutory damages for plaintiff’s alleged acts of copyright infringement, damages
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 2 of 17
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`for plaintiff’s alleged trademark infringement, punitive damages, and attorney’s fees. (Id. at 17-18.)
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`Defendant is proceeding pro se.
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`On August 5, 2015, plaintiff filed a Renewed Motion for Summary Judgment (ECF No. 52).1
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`Defendant did not respond to the renewed motion for summary judgment, but he did respond to
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`plaintiff’s original motion for summary judgment (ECF No. 46), and plaintiff filed a reply to that
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`response (ECF No. 48). After referral, on February 29, 2016, U.S. Magistrate Judge Kathleen
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`Tafoya entered a report and recommendation (“R&R”), recommending that plaintiff’s renewed
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`motion for summary judgment be granted in part and denied in part. (ECF Nos. 53. 54.)
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`Specifically, the Magistrate Judge recommended granting summary judgment on plaintiff’s claim
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`for direct copyright infringement, but denying it as to plaintiff’s claims for contributory and vicarious
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`copyright infringement and trademark infringement. (ECF No. 54.)
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`On March 22, 2016, defendant filed an objection to the R&R. (ECF No. 55.) On April 4,
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`2016, plaintiff filed a response to defendant’s objection. (ECF No. 56.) As a result, the renewed
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`motion for summary judgment and the R&R with respect thereto are now before the Court. For the
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`reasons discussed below, the Court SUSTAINS defendant’s objection to the R&R, ADOPTS IN
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`PART and REJECTS IN PART the R&R, and DENIES the renewed motion for summary judgment.2
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`I.
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`Statement of Facts
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`1 Plaintiff’s original motion for summary judgment (ECF No. 38) was denied without prejudice for
`failing to include a statement of undisputed facts (ECF No. 51).
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`2 The Court notes that in his response to the original motion for summary judgment, defendant
`included a “Cross-Motion for Summary Judgment” with respect to affirmative defenses raised in his answer
`to the complaint. (See ECF No. 46 at 7-10.) Plaintiff did not respond to this cross-motion, and the
`Magistrate Judge did not address it in the R&R. (See generally ECF Nos. 48, 54.) In any event, other than
`citing to his answer, defendant provides no evidence to support any of the affirmative defenses raised
`therein, and thus, the Court DENIES defendant’s cross-motion. See Fed.R.Civ.P. 56(c).
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`2
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 3 of 17
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`As an initial matter, the Court observes that plaintiff has violated the Court’s Civil Practice
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`Standards with respect to the presentation of undisputed material facts at summary judgment. The
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`Court’s Civil Practice Standards are clearly announced in this regard. Specifically, Civil Practice
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`Standard IV.B.2.a.ii. provides that a summary judgment movant’s statement of undisputed material
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`facts must be separate and be in a three-column format. Given that plaintiff’s original motion for
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`summary judgment contained no statement of facts, and the renewed motion for summary judgment
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`does not contain a separate statement of facts, the Court can only assume that plaintiff’s counsel has
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`never read this Court’s Civil Practice Standards. This alone is enough for the Court to deny the
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`renewed motion for summary judgment. See Civil Practice Standard IV.F.
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`Nonetheless, despite plaintiff’s failure to properly present its alleged undisputed material
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`facts, the Magistrate Judge managed to piece together a factual background to the case (See ECF
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`No. 54 at 2-4), and neither party objects to that factual background (see generally ECF Nos. 55, 56).
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`Thus, the Court will proceed with addressing the merits of the renewed motion for summary
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`judgment on this occasion only. In the future, the Court would strongly advise plaintiff’s counsel
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`to read and comply with the Court’s Civil Practice Standards or face the consequences of his or her
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`actions.3
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`II.
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`Review of a Magistrate Judge’s Report and Recommendation
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`A district court may refer pending motions to a magistrate judge for entry of a report and
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`recommendation. 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). The court is free to accept, reject,
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`or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C.
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`3 The Court’s Civil Practice Standards are publicly available on the U.S. District Court for the
`District of Colorado’s website.
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`3
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 4 of 17
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`§636(b)(1); Fed. R. Civ. P. 72(b)(3). A party is entitled to a de novo review of those portions of the
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`report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3).
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`“[O]bjections to the magistrate judge’s report and recommendation must be both timely and specific
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`to preserve an issue for de novo review by the district court or for appellate review.” United States
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`v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996). Furthermore, arguments not raised before
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`the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421, 1426
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`(10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s
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`recommendation are deemed waived.”).
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`“When no timely objection is filed, the court need only satisfy itself that there is no clear
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`error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72, Adv.
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`Comm. Notes, subdivision (b) (1983); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
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`1991) (“In the absence of timely objection, the district court may review a magistrate’s report under
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`any standard it deems appropriate.”).
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`III.
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`Legal Standard for Summary Judgment
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`Summary judgment is appropriate “when there is no genuine issue as to any material fact and
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`the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he moving
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`party bears the initial burden of presenting evidence to show the absence of a genuine issue of
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`material fact,” and “the burden of showing beyond a reasonable doubt that it is entitled to summary
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`judgment.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002) (quotation
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`and internal quotation omitted). If the moving party bears the burden of persuasion on a claim at
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`trial, that party must support its motion with evidence that, if uncontroverted, would entitle it to a
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`4
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 5 of 17
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`directed verdict at trial. Anderson v. Dep’t of Health & Human Servs., 907 F.2d 936, 947 (10 Cir.
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`1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548 (1986)).
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`A fact is material if it has the potential to affect the outcome of a dispute under applicable
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`law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). An issue is genuine if a rational trier
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`of fact could find for the non-moving party. Adams v. Am. Guarantee & Liab. Ins. Co., 233 F.3d
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`1242, 1246 (10th Cir. 2000). In performing this analysis, the factual record and any reasonable
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`inferences therefrom are construed in the light most favorable to the non-moving party. Id.
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`IV.
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`Objections to the R&R
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`Plaintiff did not file any objections to the R&R, nor did plaintiff raise any objections to the
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`same in his response to defendant’s objection to the R&R. (See generally ECF No. 56.) Thus, the
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`Court may review the Magistrate Judge’s recommendation to deny summary judgment as to
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`plaintiff’s claims for contributory and vicarious copyright infringement and trademark infringement
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`under any standard it deems fit. See Summers, 927 F.2d at 1167. In that light, based on the
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`Magistrate Judge’s well reasoned recommendation to deny those claims, the Court ADOPTS the
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`R&R with respect to those claims, and DENIES the renewed motion for summary judgment as it
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`pertains to plaintiff’s claims for contributory and vicarious copyright infringement and trademark
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`infringement.4
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`4 The Court acknowledges that one of the bases for the Magistrate Judge’s recommendation to deny
`summary judgment as to plaintiff’s contributory and vicarious copyright infringement claims was due to the
`Magistrate Judge finding that plaintiff had prevailed with his direct copyright infringement claim. (ECF
`No. 54 at 10.) As discussed infra, the Court rejects that latter finding with respect to direct copyright
`infringement. Apparent success on the direct infringement claim, though, was not the only bases for the
`Magistrate Judge’s recommendation to deny summary judgment as to plaintiff’s contributory and vicarious
`copyright infringement claims. As to contributory copyright infringement, the Magistrate Judge also found
`that plaintiff failed to provide any evidence to support his allegations that his photographs and videos had
`been viewed 300,000 times on a third-party website or that defendant encouraged users of the website to
`display his photographs and videos. (Id. at 10-11.) The Court agrees with this finding. As to vicarious
`copyright infringement, the Magistrate Judge found that plaintiff had provided no evidence that defendant
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`5
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 6 of 17
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`Defendant objects to the Magistrate Judge’s finding that his sharing of links to plaintiff’s
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`photographs and videos with other users of a website constituted copyright infringement. (ECF
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`No. 55 at 1-2.) Although defendant’s objection is not perfectly clear, he appears to argue that he
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`only shared hyperlinks to plaintiff’s photographs and videos, and that he was never in possession or
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`control of the photographs or videos. (See id.) Defendant also argues that his computer has never
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`stored plaintiff’s photographs and videos, and thus, he has not copied the same, citing Perfect 10,
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`Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). (Id. at 2.)
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`In response, plaintiff argues that the Magistrate Judge correctly found that defendant copied
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`its photographs and videos, and asserts that Perfect 10 does not support defendant’s argument and/or
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`is inapposite. (ECF No. 56 at 2-4.) Plaintiff also argues that defendant’s objection to the R&R was
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`untimely filed. (Id. at 1-2.)
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`With respect to the latter argument, plaintiff accurately asserts that the objection to the R&R
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`was not timely filed. The R&R was entered on February 29, 2016, and the objection was filed on
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`March 22, 2016—22 days after entry of the R&R.5 (ECF Nos. 54, 55.) Objections to a report and
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`recommendation must be filed in 14 days, Fed.R.Civ.P. 72(b)(2), which is extended by 3 days
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`had the ability to control any other person’s infringing activities or that defendant profited from any
`person’s direct infringement. (Id. at 11-12.) The Court agrees with this finding as well, especially given
`that plaintiff’s affidavit is based on nothing more than speculation. (See ECF No. 52-3 at ¶ 12 (“The
`purpose of this action appears to be to unlawfully earn rewards from this website, including access to
`premium libraries without charge and to encourage others to trade materials ….”)); Fed.R.Civ.P. 56(c)(4)
`(providing that affidavits must be made on personal knowledge). As discussed supra, plaintiff should have
`objected to these findings, which were not contingent upon the success or lack thereof of the direct
`copyright infringement claim. In any event, as discussed infra, plaintiff has failed to establish the first part
`of a contributory or vicarious copyright infringement claim: direct copyright infringement.
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`5 Defendant’s objection to the R&R is dated March 13, 2016. (ECF No. 55 at 3.) However,
`because Fed.R.Civ.P. 72(b) requires objections to be filed within 14 days of the entry of a report and
`recommendation, and defendant is not a prisoner, the fact that the objection here is dated on a different date
`to the one on which it was filed is irrelevant. See Fed.R.Civ.P. 72(b)(2); Price v. Philpot, 420 F.3d 1158,
`1163-64 (10th Cir. 2005).
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`6
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 7 of 17
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`because service was made electronically, Fed.R.Civ.P. 6(d) (referencing Fed.R.Civ.P. 5(b)(2)(E)).
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`Although defendant is proceeding pro se, he is still required to comply with the Federal Rules of
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`Civil Procedure. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994). Thus, as plaintiff
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`asserts, defendant is not necessarily entitled to de novo review of his objection. See 2121 E. 30 St.,
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`73 F.3d at 1060. Instead, this Court may utilize “any standard it deems appropriate.” Summers, 927
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`F.2d at 1167. In this case, however, the Court deems de novo review to be the most appropriate
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`standard. This is especially the case here where plaintiff himself has been entirely unable to observe
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`the rules of procedure for civil cases before this Court; it hardly seems appropriate for the Court to
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`ignore civil practice standards to the benefit of plaintiff, but to enforce them to the detriment of
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`defendant. As a result, the Court will address the merit of defendant’s objection.
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`V.
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`Legal Standard for Copyright Infringement
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`There are two elements to a copyright infringement claim, and the plaintiff bears the burden
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`of proof as to both: “(1) ownership of a valid copyright, and (2) copying by the defendant of
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`protected components of the copyrighted material.” Gates Rubber Co. v. Bando Chem. Indus., Ltd.,
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`9 F.3d 823, 831 (10th Cir. 1993). Ordinarily, a certificate of registration from the U.S. Copyright
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`Office “constitutes prima facie evidence of a valid copyright and of the facts stated in the certificate.”
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`Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).
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`The second element requires proof that the defendant actually copied portions of the
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`protected work, and the portions of the work copied were “protected expression and of such
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`importance to the copied work that the appropriation is actionable.” La Resolana Architects, PA v.
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`Reno, Inc., 555 F.3d 1171, 1178 (10th Cir. 2009) (quotation omitted). “[A] plaintiff can indirectly
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`prove copying (in a factual sense) by establishing that [the defendant] had access to the copyrighted
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`7
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`work and that there are probative similarities between the copyrighted material and the allegedly
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`copied material.” Id. (quotation omitted). In this context, copying is “a shorthand reference to any
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`infringement of the copyright holder’s exclusive rights” as set forth in 17 U.S.C. § 106 (“§ 106”).
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`Gates Rubber, 9 F.3d at 832 n.6. A copyright holder’s exclusive rights include, in pertinent part, the
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`rights to reproduce the copyrighted work, to prepare derivative works, and to distribute copies of the
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`work. 17 U.S.C. § 106(1)-(3).6
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`The Copyright Act, 17 U.S.C. § 101 et seq., defines “[c]opies” as “material objects … in
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`which a work is fixed by any method now known or later developed, and from which the work can
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`be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine
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`or device.” Id. § 101. The Copyright Act further explains that “[a] work is ‘fixed’ in a tangible
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`medium of expression when its embodiment in a copy … is sufficiently permanent or stable to
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`permit it to be perceived, reproduced, or otherwise communicated for a period of more than
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`transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is
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`‘fixed’ … if a fixation of the work is being made simultaneously with its transmission.” Id.
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`VI.
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`Discussion
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`Defendant’s objection to the R&R is that, although he “shar[ed]” in some manner plaintiff’s
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`photographs and videos with other users of a third-party website, at no point did he copy or store
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`those photographs or videos onto his computer, citing Perfect 10. (ECF No. 55 at 1-2.) Defendant
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`raised this same argument in his response to the original motion for summary judgment. (ECF
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`6 In the complaint, plaintiff alleges that defendant violated his exclusive rights to reproduce and
`distribute. (ECF No. 1 at ¶ 47.) In the motion for summary judgment, though, plaintiff does not
`differentiate between the respective exclusive rights in arguing that defendant infringed his copyrights. (See
`ECF No. 52 at 6-7.) In any event, both exclusive rights require that a plaintiff prove that “copies” were
`either reproduced or distributed, 17 U.S.C. § 106(1), (3), which, as discussed infra, is the main source of
`dispute in this case.
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`8
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`No. 46 at 3.) The Magistrate Judge, though, failed to address it in the R&R in finding that defendant
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`infringed plaintiff’s copyrights. (ECF No. 54 at 7.) Because the Court finds that defendant’s
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`argument has merit, the Court thus REJECTS the part of the R&R related to the second element of
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`plaintiff’s direct copyright infringement claim. As a result, the Court will conduct a de novo review
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`of that element.
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`As discussed supra, the second element of a direct copyright infringement claim requires,
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`inter alia, that the defendant copied protected components of a copyrighted work. Gates Rubber,
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`9 F.3d at 831. Here, defendant’s dispute is over whether he copied plaintiff’s photographs and
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`videos. In that regard, both parties cite Perfect 10 (ECF No. 46 at 3; ECF No. 48 at 3-5; ECF No.
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`55 at 2; ECF No. 56 at 2-5), so the Court will begin its discussion there.
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`In Perfect 10, the Ninth Circuit Court of Appeals was faced with challenges to Google’s
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`practices of creating and publicly displaying thumbnail versions of the plaintiff’s images, and linking
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`to third-party websites that displayed infringing full-size versions of the plaintiff’s images.
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`Perfect 10, 508 F.3d at 1154. In addressing whether Google’s practices violated the plaintiff’s
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`display right, the Ninth Circuit explained that a photographic image is “‘fixed’ in a tangible medium
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`of expression, for purposes of the Copyright Act, when embodied (i.e., stored) in a computer’s server
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`(or hard disk, or other storage device). The image stored in the computer is the ‘copy’ of the work
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`for purposes of copyright law.” Id. at 1160 (emphasis added). The Ninth Circuit then concluded
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`that, because Google did not dispute that its computers stored thumbnail versions of the plaintiff’s
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`copyrighted images, the plaintiff had made a prima facie case that its display right had been
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`infringed. Id. The Ninth Circuit contrasted this to Google’s practice of linking to third-party
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`websites, as this process did not result in Google’s computers storing photographic images, and thus,
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`“Google [did] not have a copy of the images for purposes of the Copyright Act.” Id. at 1160-61.
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`The Ninth Circuit further concluded that Google had not directly infringed the plaintiff’s distribution
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`rights because, although Google indexed the plaintiff’s images, Google did not have a collection of
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`stored full-size images that it made available to the public, and thus, could not be deemed to have
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`distributed copies of those images for copyright purposes. Id. at 1162-63.
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`As this Court reads Perfect 10, a key consideration in that case was whether a copyrighted
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`image was stored on an alleged infringer’s computer. This is consistent with the law in the Ninth
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`Circuit preceding Perfect 10; specifically, the Ninth Circuit’s decision in MAI Sys. Corp. v. Peak
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`Computer, Inc., 991 F.2d 511 (9th Cir. 1993). In that decision, the Ninth Circuit held that the
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`transfer of a software program from a third party’s computer to another computer’s random access
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`memory (“RAM”) constituted “copying” for purposes of the Copyright Act because the RAM copy
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`was sufficiently “fixed” to permit it to be perceived, reproduced, or otherwise communicated under
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`17 U.S.C. § 101. Id. at 518-519. In other words, transferring a copyrighted work into a computer’s
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`RAM can create a copy under the Copyright Act.7
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`Since MAI, this reasoning has been adopted by other Circuit Courts. See Stenograph L.L.C.
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`v. Bossard Assoc., Inc., 144 F.3d 96, 101-102 (D.C. Cir. 1998) (explaining that copying occurred
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`when software was loaded into the RAM of the defendant’s computers); NLFC, Inc. v. Devcom Mid-
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`7 Nothing in this Opinion should be construed as suggesting that transferring a copyrighted work
`into a computer’s RAM is the only manner in which a computer can be used to create a copy under the
`Copyright Act. For example, to the extent that a computer (“the machine”) could be used to cause a third-
`party, such as a website or another computer, to create a thumbnail or other type of image of a copyrighted
`work, without that image being viewed by the user of the machine or the image appearing on the screen of
`the machine, arguably that could constitute direct copyright infringement or contributory copyright
`infringement in that the machine caused a copy to be made, although potentially without the image being
`stored directly on the machine. That is not what has been alleged in this case. As such, this Court is not
`attempting, inferentially or otherwise, to speak to such a scenario.
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`10
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`America, Inc., 45 F.3d 231, 235-236 (7th Cir. 1995) (concluding that the defendant did not copy the
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`plaintiff’s software because the plaintiff produced insufficient evidence to support the inference that
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`a printout of its source code originated from the defendant’s computers); Quantum Sys. Integrators,
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`Inc. v. Sprint Nextel Corp., 338 F. App’x 329, 336-337 (4th Cir. 2009) (holding that copies of the
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`plaintiff’s software loaded onto the defendant’s computers’ RAM were sufficiently fixed for
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`purposes of copyright infringement); see also Cartoon Network LP, LLLP v. CSC Holdings, Inc.,
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`536 F.3d 121, 127-129 (2d Cir. 2008) (construing MAI as holding that “loading a program into a
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`computer’s RAM can result in copying that program,” and that, for such copying to be infringing
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`under the Copyright Act, it must remain embodied in a medium for more than transitory duration)
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`(emphasis in original).
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`Although the Tenth Circuit Court of Appeals has not addressed the issue of when copyrighted
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`material is copied by a person using a computer, this Court sees no reason for departing from the
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`holdings of the cases cited supra. Specifically, the Court concurs with the Second Circuit’s holding
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`in Cartoon Network that for a work to be fixed and copied under the Copyright Act it must (1) be
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`placed in a medium such that it can be perceived or reproduced from that medium, and (2) remain
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`so placed for a period of more than transitory duration. Cartoon Network, 536 F.3d at 127. This
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`holding is consistent with the language defining “copied” and “fixed” in the Copyright Act,
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`17 U.S.C. § 101.
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`In his response to defendant’s objection to the R&R, plaintiff argues that Perfect 10 does not
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`support defendant’s argument and/or is inapposite. (See ECF No. 56 at 3-5.) The Court does not
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`agree. First, plaintiff argues that the Ninth Circuit “sharply distinguished” between hyperlinks
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`showing a URL and hyperlinks displaying a thumbnail image. (Id. at 3.) Plaintiff fails to add,
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 12 of 17
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`however, why the Ninth Circuit differentiated between those two forms of communication: because
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`the images displayed by way of URL hyperlinks were not stored on Google’s computers, while the
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`images displayed by way of thumbnail were stored on Google’s computers. See Perfect 10, 508 F.3d
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`at 1160-61. That was the reason for the different treatment, not, as plaintiff appears to suggest,
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`simply because thumbnails in and of themselves were inherently infringing copies.8 Second, plaintiff
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`argues that Google’s conduct was “proscribed and protected by the Digital Millennium Copyright
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`Act.” (ECF No. 55 at 3.) Whether or not that was the case, it is irrelevant because it was certainly
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`not a reason for the Ninth Circuit’s holding with respect to the direct infringement claims. See
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`Perfect 10, 508 F.3d at 1160-61. The same is true of plaintiff’s argument that Google’s thumbnail
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`images were somehow different from the ones at issue here on the ground that clicking on Google’s
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`thumbnails generally routed a user to the author’s webpage. (See ECF No. 56 at 4.) That argument
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`pertains to whether Google’s infringing thumbnails constituted fair use, not whether they were
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`infringing in the first place. See Perfect 10, 508 F.3d at 1165 (finding Google’s thumbnails to be
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`“transformative” because the image directs a user to a source of information).
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`Similarly, plaintiff’s argument that the thumbnails here are different because they are
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`surrounded with “licentious materials” has no relevance to whether the thumbnails constitute copies
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`for purposes of the Copyright Act. (See ECF No. 56 at 4.) There is not one definition of “copies”
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`for “licentious materials,” and a different one for supposedly more “transformative” images such as
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`Google’s. Plaintiff also fails to explain the relevance of his apparent argument that, because
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`defendant is a living, breathing person with free will, defendant’s decisions to share plaintiff’s
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`photographs and videos render that conduct more infringing than Google’s. (See id. at 4-5.) Apart
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`8 To the extent plaintiff is arguing that thumbnail images are inherently infringing, he has failed to
`present any evidence of this.
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`from the fact that Google’s thumbnails were found to be infringing in Perfect 10, and thus,
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`defendant’s conduct cannot be any more infringing, plaintiff again misses the point that Google’s
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`conduct was either infringing or not based on whether Google stored thumbnails or full-sized images
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`on its computers. In other words, whether or not a person or entity must act with free will or
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`volitionally, see CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th Cir. 2004) (holding that
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`internet service providers do not copy material in direct violation of the Copyright Act when
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`“passively storing material at the direction of users in order to make that material available to other
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`users upon their request”), at the very least, the copyrighted work must be stored on the person or
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`entity’s computer.
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`Returning to the facts of this case, here, plaintiff has presented no evidence that his
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`photographs and videos were stored on defendant’s computer. Instead, in the statement of facts
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`within the renewed motion for summary judgment, plaintiff focuses solely upon plaintiff’s
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`acknowledgment that he provided links to plaintiff’s photographs and videos to other users of a
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`third-party website. (ECF No. 52 at 3-4.) Defendant has never disputed that he provided links to
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`plaintiff’s photographs and videos; and he acknowledges that fact yet again in his objection to the
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`R&R. (ECF No. 55 at 1-2.) The problem for plaintiff is that merely because defendant, in some
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`manner, shared plaintiff’s photographs and videos does not necessarily mean that defendant copied
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`the same in a way that infringes plaintiff’s copyrights. In other words, plaintiff was required to
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`present some evidence that its photographs and videos were placed on defendant’s computer and
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`remained placed there for a period of more than transitory duration. See Cartoon Network, 536 F.3d
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`at 127; Perfect 10, 508 F.3d at 1160. Otherwise, it cannot be said that defendant had a copy of
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 14 of 17
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`plaintiff’s photographs and videos for purposes of the Copyright Act. See Perfect 10, 508 F.3d
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`at 1160-61.
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`As the party with the burden of proof, see La Resolana, 555 F.3d at 1177, and, thus, the party
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`with the burden of providing evidence that, if uncontroverted, would entitle it to a directed verdict
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`at trial, see Celotex Corp., 477 U.S. at 331, it was plaintiff’s burden to provide evidence that
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`defendant’s conduct constituted copyright infringement, or, more accurately here, that defendant’s
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`sharing of thumbnail images resulted in the same being copied to the RAM of defendant’s computer
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`for a period of more than transitory duration. See Cartoon Network, 536 F.3d at 127; Perfect 10, 508
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`F.3d at 1160.9 As discussed supra, though, plaintiff has failed in this evidentiary endeavor.
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`Nonetheless, because the facts, regarding whether defendant’s conduct constituted copying or
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`contributory copying for purposes of the Copyright Act, have not been developed (by either party)
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`in any real manner,10 the Court believes that further clarification is necessary.
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`A starting point for resolving this issue is in the parties’ joint reliance on defendant’s
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`acknowledgment that he “shared” links to plaintiff’s photographs and videos that had already been
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`uploaded to the third-party website. (See ECF No. 46 at 2-3, 12.) Beyond stating that defendant
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`“shared” the subject photographs and videos, plaintiff provides no explanation of what this sharing
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`9 As the Second Circuit observed in Cartoon Network, the “transitory duration” requirement is
`equally important to this analysis. See Cartoon Network, 536 F.3d at 127-29; Advanced Computer Servs. of
`Michigan, Inc. v. MAI Sys. Corp., 845 F. Supp. 356, 362-363 (E.D.Va. 1994) (finding that, where a
`computer program is loaded into RAM for “minutes or longer,” the representation is sufficiently fixed to
`constitute a copy under the Copyright Act, but explaining that a time of “seconds or fractions of a second”
`may be “too ephemeral to be considered a copy).
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`10 In an affidavit attached to his response to the motion for summary judgment, plaintiff asserted
`that “[s]haring” an image on the third-party website does not “copy, distribute, move or modify” the images.
`(ECF No. 46 at 12.) However, that statement does not address whether, having shared the images with
`other users of the website, the images were copied, in some manner, to defendant’s computer.
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`Case 1:13-cv-00624-RM-KMT Document 62 Filed 04/18/16 USDC Colorado Page 15 of 17
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`process entails. Moreover, plaintiff fails to even allege how his photographs and videos went from
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`being uploaded to the third-party website (acts which plaintiff does not allege that defendant
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`engaged) to appearing on a forum within that website. Evidence shining light on this process may
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`suggest whether any of the photographs or videos were stored on defendant’s computer, or whether
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`defendant induced another person or entity to directly infringe plaintiff’s copyrights.
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`Based on what the Court can discern from the limited facts presented, plaintiff may have a
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`problem with providing evidence that defendant actually downloaded the subject photographs and
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`videos onto his computer’s hard drive. This does not necessarily mean, however, that the same were
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`not “fixed” within defendant’s computer for purposes of the Copyright Act. See Ticketmaster L.L.C.
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`v. RMG Techs., Inc., 507 F. Supp. 2d 1096, 1105-06 (C.D. Cal. 2007) (finding that copies