Harrington III v. Pinterest, Inc.

• Court: District Court, N.D. California
• Decided: February 28, 2024
• Docket: 5:20-cv-05290
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 MAUREEN HARRINGTON, Case No. 5:20-cv-05290-EJD

9 Plaintiff, ORDER GRANTING MOTION FOR LEAVE TO FILE THIRD AMENDED 10 v. COMPLAINT

11 PINTEREST, INC., Re: Dkt. No. 82 Defendant. 12

13 Plaintiff, Maureen Harrington III (“Harrington”), brings this copyright infringement class 14 action against Defendant, Pinterest, Inc. (“Pinterest”), arising from Pinterest’s alleged 15 unauthorized display of Harrington’s photographic works. Second Am. Compl. (“SAC”), ECF 16 No. 49. Before the Court is Harrington’s motion for leave to file a third amended complaint 17 (“TAC”). Mot. for Leave to File Third Am. Compl. (“Mot.”), ECF No. 82. Pinterest filed an 18 opposition, and Harrington filed a reply. Opp’n to Mot. (Opp’n”), ECF No. 84; Reply in Supp. of 19 Mot. (“Reply”), ECF No. 85. 20 Having carefully reviewed the relevant documents, the Court finds this matter suitable for 21 decision without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons stated below, 22 the Court GRANTS Harrington’s motion for leave to file a TAC. 23 I. BACKGROUND 24 Harrington filed his original complaint on July 31, 2020, alleging three causes of action 25 individually and on behalf of a proposed class of all persons in the United States for (1) direct 26 copyright infringement, (2) contributory copyright infringement, and (3) violation of the Digital 27 Millennial Copyright Act (“DMCA”). Compl., ECF No. 1. On December 23, 2020, Pinterest 1 moved to dismiss the contributory copyright infringement and DMCA violation claims, which the 2 Court granted with leave to amend on September 3, 2021. Am. Order Granting Mot. to Dismiss 3 Counts II and III of Pl.’s First Am. Compl., ECF No. 40. On October 17, 2021, Harrington filed 4 his second amended complaint, dropping the claim for contributory copyright infringement and 5 bringing only claims for direct copyright infringement and a violation of the DMCA. See SAC. 6 On November 12, 2021, Pinterest again moved to dismiss the DMCA claim, which the Court 7 granted with leave to amend on September 19, 2022. Order Granting Mot. to Dismiss Count II of 8 Pl.’s Second Am. Compl., ECF No. 73. Harrington’s claim for direct infringement remained. See 9 id. 10 The Court did not set a filing deadline for the third amended complaint “because the 11 parties ha[d] stipulated to stay the case schedule pending resolution of the appeal” in Davis v. 12 Pinterest, Inc., 601 F. Supp. 3d 514, 518 (N.D. Cal. 2022), aff'd, No. 22-15804, 2023 WL 13 5695992 (9th Cir. Sept. 5, 2023) (“Davis Action”). Id. at 13. The plaintiff in the Davis Action 14 alleged that Pinterest engaged in copyright infringement by copying and displaying the plaintiff’s 15 works on Pinterest's platform. Id. at 518. The district court granted summary judgment in 16 Pinterest’s favor, finding, in relevant part, that the plaintiff was barred from bringing untimely 17 infringement theories based on Pinterest’s notifications, and the plaintiff’s copyright claim based 18 on Pinterest’s display of his works on its platform failed because Pinterest was entitled to safe 19 harbor protection under the DMCA section 512(c). Id. at 528–31. 20 On September 5, 2023, the Ninth Circuit affirmed the district court’s grant of summary 21 judgment in the Davis Action. The Ninth Circuit held that the district court did not abuse its 22 discretion in baring the plaintiff from bringing notification-based infringement theories and 23 confirmed that the DMCA section 512(c) immunizes Pinterest from liability for displaying the 24 user-uploaded images hosted on its website and mobile application. Davis, 2023 WL 5695992, at 25 *1. Shortly after, this action re-opened on October 4, 2023. See ECF No. 75. 26 Harrington now seeks to file his TAC; however, he proposes amendments not discussed in 27 the Prior Order. Specifically, Harrington seeks to: (1) drop the DMCA claim; (2) narrow the 1 direct infringement claim in light of the Davis holding to allege only that Pinterest infringes on 2 Harrington’s works through its email and push notifications, not through publication on its own 3 platform; (3) narrow the proposed class to only professional photographers and subclass of 4 specifically named professional photographers rather than “all persons in the US”; and (4) add 5 second name plaintiff, Harold Davis (“Davis”), a professional photographer who was identified in 6 the SAC as a member of the proposed class and who was the plaintiff in the Davis action. See 7 Mot. 8 II. LEGAL STANDARD 9 Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a 10 matter of course within 21 days of service of the pleading. Fed. R. Civ. P. 15(a)(1). After that 11 period, amendment is permitted only with the opposing party's written consent or leave of the 12 court. Id. at Rule 15(a)(2). Rule 15 instructs that “[t]he court should freely give leave when 13 justice so requires.” Id. This rule is applied with “extreme liberality.” Eminence Capital, LLC v. 14 Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). 15 Courts commonly consider four factors when determining whether to grant leave to 16 amend: (1) bad faith on the part of the movant; (2) undue delay; (3) prejudice to the opposing 17 party; and (4) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 18 (1962); Lockheed Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999). “[I]t is 19 the consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 20 Capital, LLC, 316 F.3d at 1052. “Absent prejudice, or a strong showing of any of the 21 remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave 22 to amend.” Id. (emphasis in original). “The party opposing amendment bears the burden of 23 showing prejudice.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). 24 III. DISCUSSION 25 Pinterest does not argue that Harrington seeks to amend in bad faith, or that the 26 amendment would result in undue delay or prejudice. Instead, Pinterest’s entire opposition rests 27 on the argument that any amendment to the direct infringement claim is futile. Specifically, 1 Pinterest argues that: (1) adding Davis is futile under the doctrine of res judicata, (2) amendment 2 is futile given the Ninth Circuit’s holding in the Davis Action, and (3) re-defining the class is 3 futile because Harrington will be unable to certify the proposed class. See Opp’n. 4 The Court finds that Pinterest’s arguments fail to overcome Rule 15(a)’s presumption in 5 favor of granting leave to amend. The Court will address each argument in turn. 6 A. Adding Davis as Named Plaintiff 7 First, Pinterest argues that adding Davis to the TAC is futile under the doctrine of res 8 judicata because Davis already litigated, or had the opportunity to litigate, this claim in the Davis 9 Action. Mot. 7–9. 10 Under the doctrine of res judicata, a final judgment on the merits bars further claims by 11 parties or their privies based on the same cause of action or other issues that could have been 12 raised in that proceeding. See Allen v. McCurry, 449 U.S. 90, 95 (1980); Montana v. United 13 States, 440 U.S. 147, 153 (1979). In determining whether two suits involve the same claim or 14 cause of action, courts generally look to whether the suits involve the same transactional nucleus 15 of facts, whether the rights or interests established in the prior judgment would be destroyed or 16 impaired by the second action, whether the suits encompass infringement of the same right, and 17 whether the suits involve substantially the same evidence. Mpoyo v. Litton Electro-Optical Sys., 18 430 F.3d 985, 987 (9th Cir. 2005). 19 Here, it is true, as Pinterest highlights, that this action is quite similar to Davis in that both 20 cases allege that Pinterest directly infringed on the copyrights of various artists’ works. Indeed, 21 the Parties agreed in their request to stay this case pending Davis that there was “significant 22 overlap” between the cases, where Davis involved “a similar claim of direct copyright 23 infringement against Pinterest.” Joint Stip. and Proposed Order Regarding Case Schedule 2, ECF 24 No. 70. 25 However, there is a key difference between the two litigations. Harrington’s TAC alleges 26 an infringement claim arising from Pinterest’s notification system, which Harrington alleges 27 publicly displayed copyrighted material outside of its platform through emails and push 1 notifications. TAC ¶ 61 (“Defendant, without the permission or consent of Plaintiffs, the Class, 2 or Subclass, incorporated their federally registered works in Notifications.”). In contrast, Davis 3 challenged the public display of his works in proximity to or in the same feed as promoted pins 4 within Pinterest’s platform in the Davis Action. See Davis v. Pinterest, Case No. 19-cv-07650- 5 HSG (N.D. Cal. filed on Nov. 11, 2020), Second Am. Compl. ¶ 85, ECF No. 56 (“Defendant, 6 without the permission or consent of Plaintiff, copied, distributed, and publicly displayed his 7 federally registered, copyright protected works. Defendant’s acts violated Plaintiff’s exclusive 8 rights under the Copyright Act.”). In other words, Harrington’s amended complaint alleges 9 infringements through notifications outside of the platform, and Davis concerned infringement 10 allegations within the platform. It appears that Davis attempted to allege the same notification- 11 based infringement theory in the Davis Action, but Pinterest opposed, arguing that Davis missed 12 his deadline to include new infringement theories. The district court agreed with Pinterest, 13 finding that “instances of alleged infringement from Pinterest's notifications are not at issue in this 14 case.” Davis, 601 F. Supp. 3d at 527. 15 Given that Pinterest successfully opposed Davis litigating his notification-based 16 infringement claim in the Davis Action, the Court finds that there was no final judgment on the 17 merits which would bar Davis from raising that claim here. 18 B. Futility of Infringement Claim 19 Next, Pinterest argues that amendment is futile because “Judge Gilliam’s summary 20 judgment opinion in Davis and its affirmance on appeal leave nothing of Harrington’s 21 infringement claim to litigate.” Opp’n 10. 22 However, as discussed above, the district court never reached the issue of notification- 23 based infringement—to the contrary, it clarified that “instances of alleged infringement from 24 Pinterest's notifications are not at issue in this case.” Davis, 601 F. Supp. 3d at 527. Pinterest 25 relies in error on dicta from the district court which noted that, even if it did consider the 26 notifications infringement theory despite Davis’s delay, the court had concerns regarding how the 27 notifications infringed given that the notifications only contained hyperlinks to the image, not the 1 actual image. Opp’n 10 (citing Davis, 601 F. Supp. 3d at 527 (“Even if the Court were to 2 consider the notifications sent to Pinterest users, however, it is not clear how they infringe 3 Plaintiff's copyrights. The notifications do not appear to contain copies of Plaintiff's works. 4 Rather, they contain hyperlinks to images on Pinterest's website and mobile application. Courts 5 have held that ‘hyperlinking alone does not constitute copyright infringement, since it does not 6 involve any actual copying.’”) (citations omitted)). This statement is far from, as Pinterest states, 7 “directly” and “expressly” disposing of Davis’s notifications theory, id. at 4, 11 n.6, or 8 establishing that Harrington’s notification theory is barred “as a matter of law,” id. at 12. 9 Alternatively, Pinterest argues that the Ninth Circuit’s confirmation that Section 512(c) of 10 the DMCA immunizes Pinterest from liability for displaying the user-uploaded images hosted on 11 its website and mobile application bars relief in this case. Id. at 11. 12 However, again as discussed above, neither the district court nor the Ninth Circuit directly 13 addressed the question of whether the DMCA immunizes Pinterest from liability for sending 14 notifications outside its platform that contain links directing the recipient to the images. It may be 15 that the DMCA also immunizes Pinterest from liability for such actions, but at this stage, Pinterest 16 has not established as a matter of law that Harrington’s claim would be futile on this ground. 17 Given that the Davis Action explicitly declined to consider the Harrington’s sole claim of 18 notification-based infringement, the Court finds that the Davis Action does not render 19 Harrington’s case futile at this stage. 20 C. Issues with Class Certification 21 Finally, Pinterest argues that Harrington should not be permitted to narrow the scope of 22 the class because a class action is inappropriate for “the inherently individualized nature of a 23 copyright claim,” and the narrowed scope of the class still “does nothing to reduce the massive 24 litigation burdens such an action would entail.” Opp’n 14. However, the Court finds it premature 25 to address Pinterest’s class certification arguments at this early stage. Vinole v. Countrywide 26 Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (noting the “unremarkable proposition that 27 often the pleadings alone will not resolve the question of class certification”); Albers v. 1 Yarbrough World Solutions, LLC, 2020 WL 6064334, at *11 (N.D. Cal. Oct. 14, 2020) (finding it 2 || premature for a defendant to challenge class certification through an opposition to a motion for 3 leave to amend) (citing Walintukan v. SBE Entm't Grp., LLC, Case No. 16-cv-01311-JST, 2017 4 |} WL 635278, at *3 (N.D. Cal. Feb. 15, 2017) (same)). 5 || IV. CONCLUSION 6 Based on the foregoing, the Court GRANTS Harrington’s motion for leave to file a third 7 amended complaint. Harrington is ordered to file the TAC attached at ECF No. 82 by March 6, 8 || 2024. 9 IT IS SO ORDERED. 10 || Dated: February 28, 2024

EDWARD J. DAVILA 12 United States District Judge

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Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 5:20-cv-05290-EJD ORDER GRANTING MOT. FOR LEAVE TO FILE THIRD AM. COMPL.