McGucken v Shutterstock Inc. - Copyright Infringement Appeal

23 - 7652 McGucken v. Shutter stock, Inc. 1 In the United States Court of Appe als for the Se cond Circui t August Term 202 4 Argued: December 2, 2024 Decided: February 10, 2026 No. 23-7652 E LLIOT M C G UCKEN, Plaintiff-Appellant, v. S HUTTERSTOCK, I NC., Defendant-Appellee, v. D OES 1–10, Defendant. * Appeal from the United States D is tric t C o urt for the Southern District of New Yor k No. 22- cv -905, Jennifer H. Rearden, D istric t C our t Judge. Before: L YNCH, L EE, and P ÉREZ, Circuit Judges. Elliott McGucken is a pr ofessional photograp her. Between 2018 and 2022, hundreds of McGuc ken’s photographs b egan appearing on th e platform of an online stock photo marketplace ca lled Shutterstock, Inc. wi thout his knowledge or * The Clerk of C ourt is re spectf ully directe d to ame nd the ca ption accord ingly.

23 - 7652 McGucken v. Shutter stock, Inc. 2 consent. McGucken sued Shut terstock for copyright infringem ent, in violation of 17 U.S.C. § 106, and false copyright management information (“ CMI”), in vio latio n of 17 U.S.C. § 1202. The Dis tric t Cou rt granted Shutters tock’s motion for s ummary judgmen t on all co unts, concluding that Shutterstock could avoid liability for copyright infringement through a safe h arbor provision of the D igital Millenium Copyright Ac t (“DMCA”), an d that it s removal of metadata from so me of McGucken’s images did not violate § 120 2. McGucke n appea ls. We affirm the D istric t C o urt’s jud gment in par t and vacate in par t. We conclude that Shutters tock’s actions removing or altering the CMI associated with Mc Gucken’s photogr aphs did not violate 17 U.S.C. § 1202, because nothin g in the record su ggests t hat Shutterstock possessed the requ isite scienter to be liable u nder the statu te. As to McGucken’s copyright in fringement claims pursuant to 17 U.S.C. § 106, we conclude that Sh utterstoc k s atisfied most of the requirement s to qualify for safe harbor im munity under the DMCA. However, there remai n tw o issues of fact t hat preclud e summa ry j udg ment: (1) whether the infringing activity a lleged by McGucken occurre d “by reason of the storage at the direc tion of a user of material t hat resides on” Shut terstock’s onli ne marketplac e; and (2) whether Shu tterstock has the “rig ht and ability to cont rol” the infring ing activ ity a t iss ue he re. Therefore, we AFFIRM IN PART and VACATE IN PA RT. We AFFIRM the District Court ’s grant of s ummary judg ment o n McGucken’s false CMI cla im. We VACATE the Dis trict C ourt’s gr ant of sum mary jud gment on McGucken’s remaining copyr ight infringement claims and REMAND for further proceedings consistent with this opinion. S COTT A LAN B URROUGHS, Doniger / B urroughs, for Plaintiff-Appellant. E LEANO R M. L ACKMAN (Marissa B. Lewis, on the brief), Mitche ll S ilber ber g & Kn upp LL P, for Defendant-Appellee.

23 - 7652 McGucken v. Shutter stock, Inc. 3 M YRNA P ÉR EZ, Circuit Judge: Elliott McGucken is a pr ofessional photograp her. Between 2018 and 2022, hundreds of McGuc ken’s photographs b egan appearing on th e platform of an online stock photo marketplace ca lled Shutterstock, Inc. wi thout his knowledge or consent. Thereaf ter, McGucken sued Shutterstock for false copyright management information (“C MI”) under 17 U.S.C. § 120 2 and copyright infringement under 17 U.S.C. § 106. After discovery, both part ies moved for summar y judgment. The Distr ict Co urt granted Shutterstock’s moti on fo r summary j udgment on all counts, concluding that Shutterstock could avoid liab ility for copyright infringe ment through a safe harbor pr ovision of the Digital Milleniu m Copyright Act (“DMCA”), and that its removal of metadata from so me of McGucken’s images did no t vio late § 1202. Mc Gucken appeals. We affirm in part and vacate in par t. First, Mc Gucken fa iled to introduce any e vidence th at Shu tters tock had the requisit e scienter to b e liab le for false CMI unde r 17 U.S.C. § 1202. Th us, we affirm the D is tric t C o urt ’s grant of sum mary judgment to S hutterstock on those claims. As to McGucken’s copyr ight infringement claims pursuant to 17 U.S.C. § 106, we conclude that Shu tter stock sat isfie d mos t of the req uirements to q ualify for safe harbor immu nity under the DMCA. Ho wever, there remai n two issues of fac t that

23 - 7652 McGucken v. Shutter stock, Inc. 4 preclud e summary judgment: (1) w het her t he in frin ging ac tivity a lleged by McGucken occurr ed “by reason of the stor age at the direct ion of a use r of material that resides on” Sh utterstock’s on line mar ketplace; and (2) whether Sh uttersto ck has the “right and ability to control” the infringing activity at issue here. Accordingly, w e va cate the D istr ict C ourt ’s ruling on McGucke n’s copyr ight infringement c la ims an d remand the case to t he D istr ict C ourt for further proceedings consistent with this opinion. BACKGROUND I. Shutterstock’s Onli ne Platform Shutterstock oper ates an online mark etplace for photogr aphs, video footage, music, and o ther digital conten t. The Shutter stock plat form contains over 424 million images and 26 million v ideo clips. Ever y day, S hutterstock adds approximately 200,000 i mages and an average of 75,00 0 video clip s t o the marketplace. Most of the images that appear in Shutterstock’s marke tplace were submitted by a pproved 1 thir d - party contr ibutors. Once these contributors agree 1 The D istr ict C ourt f ound t hat “[e]xc ept for those wh o hav e been p reviou sly su spe nded f rom the platform, any one who agree s to S hutterst ock’s ‘C ontri butor Terms of Serv ice’ a nd ‘Contri butor Guide line s’ can be come a ‘C ontribut or ’ and up load the ir image s to Shutt erst ock for l icensi ng.” McGucken v.

23 - 7652 McGucken v. Shutter stock, Inc. 5 to Shutterstock’s “C ontributor Terms o f Se rvice” and “ Contri butor Guidelines,” they can up load images to the website a nd receive a porti on of any license fees paid by Shut terstock’s custo mers for their im ages. J. App’x at 2 38. Shutters tock reviews every im age before i t appears i n the onl ine marketplace. It cla ims th at it d oes th is t o weed out images tha t contain “hal lmarks of spamming, ” “ visible watermark s, ” technical quality issues, or mater ial like “ pornograph y, hatef ul imager y, trade marks, copyrigh ted materials, [or] p eople’s names and likene sses wi thout a mode l release.” I d. at 239 –40. Tech nic al q ualit y issues that, according to Shutter stock, co uld prevent an imag e from appearing on the platform include poor focus, composi tion, lig htin g, and blurriness. Shutterstock’s re viewers examine eac h image for an average of 10 to 2 0 seconds and typically each image is reviewed by only one person. Prior to review, Shutterstock auto matically removes al l metadata associated with the fi le and allows users to supply the ir preferred disp lay name and metad ata. Shutters tock’s reviewers exa mine that new user - created metadata, which includes an image tit le, keywords, and a des cription. Shutt erstock, Inc., No. 22 - cv - 00905, 2023 WL 6390 530, at *2 (S.D. N.Y. O ct. 2, 2023). Mc Guck en dispute s this characterization of Shuttersto ck’s contributor approval proc ess: “Shutters tock reviews and approves its contributor s’ cred entia ls befor e allowin g them t o contr ibute ph otogr aph y to be consid ered for i nclusi on in Shutterst ock’s port folio.” Appellant’s B r. at 5.

23 - 7652 McGucken v. Shutter stock, Inc. 6 Once Shutterstock approves an image, its software the n automatical ly creates multiple thumbnai l copies of the image and a dds Shutterstock’s o wn watermark to the image for display o n the custo mer platform. Finally, image s are uploaded to the customer pl atform and made available thro ugh Shuttersto ck’s application progra mming interfa ce (“API”). Once an image is available on the customer plat form, it can be licensed through any of Shutters tock’s different licensing models. C ustomers ha ve the option to purchase a “subscription licens e” to the p latform or to license individual photographs fro m Shutterstock on a per - image basis. Id. at 242. Shutterstock describes its lice nsin g p roce ss as “entire ly automated. ” Id. at 241. II. McGucken’s Phot ography and This Lawsuit This case arose aft er 337 of McGucken’s or iginal photogr aphs were uploaded by three of Shutterstoc k’s contributo rs and were made ava ilable for licens e through the website. Shutterstock ultim ately licensed 165 of Mc Gucken’s image s to its cus tomers, ge nerating $2,13 1.60 in revenue tha t was share d between Shutterstock and the contributors who u ploaded the images. On December 30, 2 020, McGucken ’s attorney contacted Sh utterstock to notify it that one of McGucken’s photo graphs was being s old on the platform

23 - 7652 McGucken v. Shutter stock, Inc. 7 without his permission. Shutterstoc k replied five d ays later requesti ng that McGucken provide a formal takedo wn notice. On January 15, 2021, McGucken sent a takedown notice that ident ified two URLs on Shutters tock’s platform contai ning the image. Shut terstock removed the im age from th o se two U RLs four days later. McGucken filed suit against Sh utterstock on Fe bruary 2, 2 022, alleg ing copyright infringement concernin g the noticed image and 32 4 additional i mages on the pl atform. He subsequent ly amended the l awsuit to i dentify twel ve more photographs on Shutterstock’s websi te in which he claimed copyrigh t. Shutterst ock terminated th e three contributo r accounts respo nsible for uplo ading McGucken ’s pho tograph s and removed th eir images. McGucken’ s lawsuit asserted t hree claims: (1) Shutte rstock infri nged his copyright by “cop ying, publishing, dis tributing, offer ing for lic ense, licensing, and displaying the Subject Photography to the public,” J. Ap p’x at 38; (2) S hutterstock committed vicario us and /or contributory i nfringement through the licens in g of his photographs to th ird parties, id. at 39; an d (3) Shut terstock unlawful ly removed McGucken’s C MI from his images and rep laced it with S hutters tock’s own CMI in violation of 17 U.S.C. § 1202(a) an d (b), id. at 40–41.

23 - 7652 McGucken v. Shutter stock, Inc. 8 STANDARD OF REVIEW We review a district cour t’s decision to “grant [] sum mary judg ment de novo, ‘construing the e vidence in the light most favorab le to the p arty against whom summary judg ment was granted and drawing al l reasonable infer ences in that party’s favor.’” Capi tol Records, LLC v. Vi meo, Inc. (“ Vimeo II ”), 125 F.4th 4 09, 41 8 (2d Cir. 2025) (quoti ng Bey v. City of New York, 999 F.3d 157, 164 (2d Cir. 2021)). Summary judgmen t is only appropriate where there is no “genuin e dispute as to any material fac t and the movant is en titled to judg ment as a m atter of law.” Fe d. R. Civ. P. 56(a). Wh ere, as here, both par ties cross move for sum mary judgment, “each motion is analyzed separate ly, ‘in each case construing the evidence in the light most favorable to the non - moving party.’” Vimeo II, 125 F.4th at 418 (quoting Schwebel v. Crandall, 967 F.3d 96, 102 (2d Cir. 2020)). “‘ The party seeking summary judgment bears t he burden of establ ishing that no genuine issue of materia l fact exists, ’ but ‘ when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to ’ an absence of evidence ‘ on an essentia l element o f the nonm ovant’s claim. ’ ” Bustamante v. KIND, LLC, 100 F.4th 419, 432 (2d Cir. 2 024) (quot ing Souza v. Exotic Island Enter s., Inc., 68 F.4th 99, 108 (2d Cir. 2023)). In othe r words, “[t]here

23 - 7652 McGucken v. Shutter stock, Inc. 9 must be more than a ‘ scint illa of ev iden ce ’ in the non - mov ant’s favor; t here must be evidence upon which a fact - fi nder could reason ably find fo r the non -movant.” Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (q uoting A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). DISCUSSION I. McGucken’s False C MI Claims Pursu ant to 17 U.S.C. § 1202 We first cons ider McGucken’s two fa lse CMI cla ims. The D istrict C ourt granted summar y judgment for Shut terstock on both claims, conc luding that McGucken failed to s atisfy his burden as to the requi red scient er element s. For the follo wing reasons, we affirm. A. DMCA F alse Copyright Mana gement Inf ormation Provi sions Under 17 U.S.C. § 1202(a), it is unla wful to “(1) prov ide copyright management inform ation that is false, or (2) distrib ute or import for distribu tion copyright managem ent information that is false.” To be liable under § 1202(a), a party must engage in one of these t wo acts “kn o wingly and with the intent to induce, enable, facil itate, or conceal infringemen t.” In other words, § 1202(a) contains a pair of scienter element s: to b e liab le, a party must both have actual

23 - 7652 McGucken v. Shutter stock, Inc. 10 knowledge that the CMI at issue is false and have acted with t he intent to induce, enable, facilitate, or conceal infr ingement. Under 17 U.S.C. § 12 02(b), it can a lso be u nlawful to mo dify or r emove CMI without author ization. To es tablish a violation of § 1202(b), a plaintiff m ust prove “ (1) the existence of C MI in connection with a copyr ighted work; and (2) th at a defendant ‘ dist ribu te [d]. . . works [or] copies of works ’; (3) w hile ‘ knowing that [CMI] has been removed or al tered without a uthority of the copyright owner or the law ’; and (4) while ‘ know ing, or. . . having reasonab le grounds to know ’ tha t such d istr ibu tion ‘ wil l in duce, en able, facilita te, or conceal an infr ingement. ’” Mango v. BuzzFeed, Inc., 970 F. 3d 167, 171 (2d Cir. 2020) (q uoting 17 U.S.C. § 1202(b)). We have referred to t he third and fourth prongs as a “double - scienter requirement,” M ango, 970 F.3d at 170 – 72, a nd they are similar to the pair of scienter element s app licab le t o § 120 2(a) claims. However, unde r § 120 2(b), a party can be liab le de spite having only had con structive know ledge that t heir dis tribu tion of “improperl y attributed copyrighted material. . . ‘will induce, enable, facilita te, or conceal an infringement.’” Id. at 171 (quoting 17 U.S.C. § 1202(b)).

23 - 7652 McGucken v. Shutter stock, Inc. 11 B. McGucken ’s False CMI Claim s Against Shutterstock McGucken br ought two clai ms relating to CMI — one bas ed on Shutterstock’s inclus ion of false CMI on McGucken’s images under 17 U.S.C. § 1202(a) (Shutterstock’s name and logo on the watermark it affixed to the photographs), and o ne based on the r emoval of McGucken ’s CMI from cert ain photographs under § 1202(b) (Shu ttersto ck’s removal of the images’ metadata). Thes e cla ims fa il. To survive Shu tterstock’s su mmary judg ment motion, Mc Gucken’s burde n is not to pro ve tha t Shutte rstock h ad the r equisit e scienter. But he still must addu ce some “ spec ific facts ” suffi cient to crea te a triab le is su e a s to the scienter requirement s app lica ble un der § 1202(a) and (b). 2 Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Ci r. 2003). For McGuck en’s § 1202(a) claim, t hat means creating a triab le iss ue as to whether Shutt erstock: (1) knew the CMI associated with McGucken’s ima ges was false; and (2) ac ted with the intent to “induce, e nable, 2 McGucken insist s that it would be “unfair” for him to bear the burde n of pr oving scie nter at summary jud gme nt, sinc e Shutterst ock’s kn owled ge and intent ar e facts “‘par ticularly w ithin’ Shutterst ock’s kn owledge.” Appe llant’s Br. a t 56 (citing Fri edma n v. Liv e Nat ion M erch., Inc., 833 F.3d 118 0, 1189 (9th Cir. 2016)). How ever, the Ninth Ci rcuit case on which McGucken reli es ex plains tha t defendant s can “ ‘ persuad[e] the co urt that there is no genuine issue of material fact ’ ” and thus meet their “‘ ultima te burden ’ ” on summa ry jud gmen t “ by prov iding s ome ex planatio n” for the a lleged ly infring ing activ ity. Friedm an, 833 F.3d at 1189 (quoting N issan F ire & Mari ne Ins. Co. v. Fr itz Cos., Inc., 210 F.3d 1099, 1 102 (9th Cir. 2000)). We agree.

23 - 7652 McGucken v. Shutter stock, Inc. 12 facilitate, or conceal infringemen t” of those images. 17 U.S.C. § 1202(a). And for his § 1202(b) c laim, t hat means creating a triable issue as to whether S hutterstoc k: (1) knew the CM I associat ed with McGucken’s i mages was remo ved or alt ered without author ization and (2) d istributed McGucken ’s image s knowing, or with “reasonable groun ds to know,” tha t do ing so would “ induce, enable, facilitate, or conceal ” infringeme nt. 17 U.S.C. § 1202(b)(3). Relying o n a sworn statement by a Shutterstock employee, the D istric t C ourt found that Sh utterstock au tomatically affixes its w atermark to every image on its site “‘in o rder to prevent third parti es from using the images wit hout a license’ and that [the practice ] ‘ is intended and unde rstood to identify Shutterstock as the source or distribu tor of the image, rather t han as the author or copyr ight owner.’” McGucken v. Shutters tock, Inc., No. 22 - cv - 0 0905, 2023 WL 63 90530, at * 11 (S.D.N.Y. Oct. 2, 2023) (quo ti ng J. App’x at 241). McGucken points to no evidence suggestin g that Shutterstock aff ixed its watermark to his images — or, indeed, to any images — with knowledge th at it constituted f alse CMI and f or the purpos e of concealing copyright infringement. Because there i s no tri able issue as to Shutt erstock’s

23 - 7652 McGucken v. Shutter stock, Inc. 13 knowledge o r inten t, we affirm the D ist rict C ourt ’s ruling as to McG ucken’s § 1202(a) claim. 3 McGucken’s § 1202(b) cla im fails for much the sa me rea son. While Shutterst ock concededly know s that it removes CMI from every image ingested into its sy stem, J. App’x at 24 1, Shutterstock explained — and McGucke n failed to refute — that it removes meta data from a ll images primar ily to avoid co mputer viruses and the dissemination of pers onally identifiab le informat ion, and not for any reasons related to infringe ment. Nothing in the record suggests that Shutterst ock removed McGuc ken’s CMI o r distr ibu ted his w or k knowing that th e CMI had been removed without his consent. Nor is there evid ence demonstrati ng that Shut terstoc k re moved CMI from McGucken’s images “knowing, or, with respect to civil remedies under section 1203 [which are sought here], having reasonable grounds to know, that it wi ll induce, enable, fac ilitate, or concea l an infringement of any r ight under this title [i.e., copyright].” 17 U.S.C. § 1202(b)(3); see also Mango, 970 F. 3d at 171. 3 Because we c onclude that McGucken’s § 12 02(a) claim f ails on t he inte nt ele ments, we d o not opi ne on whether affixing a watermark to user - subm itted images marketed to third parties could ever constitut e false CM I.

23 - 7652 McGucken v. Shutter stock, Inc. 14 Because not hing in the record suggest s th at Shutterstock had the scienter necessary for liab ility, we affirm the District Court’s grant of summary judgment for Shutterstock on McGucken’s § 1202(b) claim. See Zuma Press, Inc. v. Getty Images (US), Inc., 349 F. S upp. 3d 369, 376 (S.D.N.Y. 2018) (concluding tha t Getty Images lacked requisite scient er under § 1 202(b) where it “utilized an a utomated process” that mod ified “appen ded copyright man agement information”); cf. Mango, 970 F.3d at 172 – 73 (fin ding that Buzzfeed had kno wledge that remov ing and altering CMI from one specific image “woul d conceal the fact that [it] did no t have authority to use the Photo”). II. McGucken’s Copyri ght Infringeme nt Claims Shutterstock’s principal defense to McGucken’s remaining claims of dir ect and secondary cop yright infringement is that it qualifies for a safe h arbor established by the DMC A pu rsuan t to 17 U.S.C. § 512(c). By way of backgro und, t he On line Copyright Infringeme nt Liability Limitation Act (“OC ILLA”), Title II of the DMCA, established multi ple “ safe harbors that al low q ualifying serv ice providers to limit liab ility for cert ain claims of copyright infringe ment.” Vimeo II, 125 F.4th at 41 3. T hese safe harbors refl ect a “‘ compro mise ’ between protecting copy right owners and ‘ i nsu lat [in g ] service

23 - 7652 McGucken v. Shutter stock, Inc. 15 providers fro m liability for infringements of which they ar e unaware, cont ained in material posted to their sites by user s, so as to make it commercially feasible for them to provide valuable Int ernet services to th e public. ’” Id. (alter atio n in origin al) (q uoting Ca pitol Recs., LLC v. Vimeo, LLC, 826 F.3d 78, 82 (2d C ir. 2016)). The District C ourt gr anted summary judgment for S hutterstoc k, concluding that it met each of the safe harbor require ments. We agree with the District Court as to all but two of the requirement s. Because Shutterstock must meet every requirement to qualify for safe harb or, we vacate the D istrict Court’s gran t of summary judg ment on the c opyright infringemen t claims and remand for further proceedings. A. Threshol d Criteria f or Safe Harbor Und er § 512(c) We begin with the three threshold cri teria that a party must me et to qualify for any of the safe ha rbor s created by t he DMCA. See Viacom Int'l, Inc. v. YouT ube, Inc., 676 F.3d 19, 27 (2d Cir. 20 12); Vimeo II, 125 F.4th at 413 n.2. First, it must establi sh that it is a “service prov ider” under 17 U.S.C. § 512(k)(1). Second, it must show tha t it “has ado pted and reasonab ly implemen ted . . . a p olicy that pro vides for the termination in approp riate circumstances of sub scribers and account holders of the servic e provider’ s system o r network who are rep eat infri ngers.” Id.

23 - 7652 McGucken v. Shutter stock, Inc. 16 § 512(i)(1)(A). And third, it must “n ot interfere w ith standard techn ical measures. . . that are used by copyrigh t owners to ident ify or protect copyrighted works.” Id. § 512(i)(1)(B), (i)(2). We conclude that Sh uttersto ck sa tisfies th ese thr ee requirement s. 1. Shutterstock Is a Service Provider First, under § 512(k)(1), Shutterstock is c learly a “service provider.” As relevant here, a “service provider” re fers to “a provider of online services or network access, or the operator of facilities there for.” 17 U.S.C. § 512(k)(1)(B). This is a broad def inition that cover s any o nli ne plat form designe d to assist user s in doing something that benefits t hose users (i.e., a serv ice). Thus, unsurpr isingl y, courts have fo und that a wide var iety of online platforms qualify as service providers, ra nging from platfor ms that operate like bulletin boards wher e users can uplo ad videos and phot ographs for o thers to view, see, e.g., Wo lk v. Kodak Imaging Network, Inc., 840 F. S upp. 2d 724, 744 (S.D.N.Y. 2012), aff’ d sub nom. Wolk v. Photobucket.com, Inc., 569 F. App ’ x 51 (2d Cir. 2014) (summary order), to platforms that dire ctly facilitate the s ale of goods to consumers, see, e.g., Corbis Corp. v. A mazon.com, I nc., 351 F. S upp. 2d 1090, 1100 (W.D. Wash. 2004); Hendrickson v. eBa y, Inc., 165 F. Su pp. 2d 1082, 1088 (C.D. Cal.

23 - 7652 McGucken v. Shutter stock, Inc. 17 2001). And in another case, a distri ct court i n our Circu it found Shutt erstock to be a service provider. See Steinmetz v. Sh utterstock, Inc., 629 F. Supp. 3d 74, 81 –83 (S.D.N.Y. 2022). McGucken points us to a distr ict court de cision, Agen ce France P ress v. Morel, which concluded that an ent ity that “licens[es] copyrighted material online” was not a servi ce provider, becaus e licensing “more closely rese mbles the mere s ale of goods . . . than f acilitating use rs’ act ivities online.” 934 F. Supp. 2d 54 7, 566 (S.D.N.Y. 201 3). Bu t th at limita tion has no b asis in t he broad statu tory def initio n of “service provider.” Se ction 512(k)(1)(B) does not exc lude online p latforms that, like Sh uttersto ck, act as the principal on a copyright license in order to facilitate the abi lity of third - party contribu tors to licens e the image s they uploa d to members of the public. 4 2. Shutterstock A dopted an d Implem ented a Rep eat Infri nger Poli cy Second, Shutterstock “h as adopted and reasonably i mplemented” a re peat infringer policy. 17 U.S.C. § 512(i)(1)(A). To be clear, McGucken does not contend that Shutterstock lacked such a policy but argues only that a f actual dispute exis ts 4 Of course, under certai n circumstances, a servi ce provider’s practice o f licensing user - uploaded images ma y run a foul of ot her § 512(c) requirement s. Here, w e merely ho ld that Shut terstock’s licen sing practice does not ca tegorica lly take it o utside t he statut ory definit ion of “ service pr ovider.”

23 - 7652 McGucken v. Shutter stock, Inc. 18 as to whet her it has been reasonabl y implemented. While we have not pr eviously offered a general ized definition of what constit utes “re asonable implemen tation” of a re peat infringer policy, the Ninth Circ uit has formulated a standard, wh ich we find pers uasive and now adopt. “[A] n implementati on is reasonable if, under ‘appropr iate circumstances,’ the service pro vider termi nates users who repeated ly or blatantly infringe copyright.” Perfect 10, Inc. v. CCBill LLC, 48 8 F.3d 1102, 1109 (9t h Cir. 2007). That standar d does not “require perfect ion” —“[e]ligib ility for the safe harbor is no t lost just because som e repeat infringers may have slipped t hrough the provider’s net for screening them out and terminating their access.” Ventu ra Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 618 (9th Ci r. 2018) (finding on s ummary judgmen t that the requirement was satisfied even though “n ine alleged repeat infringers h ad slipped through” de fendant’s screening and one infringer was not terminated until defendant “ha d received a fourth DMCA - compliant n otice” related to t he infrin ger’ s ac tivit y). No reasonab le factfinder could conclude that Sh utterstoc k fails to meet this standard. As a general matt er, a service provider c an run af oul of § 512(i)(1)(A) if it fails to “connect known infringing act ivity of which it became aware thro ugh

23 - 7652 McGucken v. Shutter stock, Inc. 19 takedown notices to” s pecific users who have re peatedly posted infringin g material. EMI Christian Mu sic Grp., I nc. v. MP3tunes, LLC, 844 F.3d 79, 90 (2d Cir. 2016). But here, all McG ucken has shown is that Shu tterstock failed to ter minate one repeat infringer. Considering that Shutters tock hosts hun dreds of millions of images and vi deos, uploaded by millions of contributors, the f ailure to termi nate one repeat infringer, standing alo ne, cannot establish unreason able imple men tatio n. To hold otherwise would req uire a standar d of perfect ion not contemp lated b y the s tatute. 5 3. Shutterstock Do es Not Interfere wit h Standard Technical Measures Fina lly, there is no genuine dispute t hat Shutterstock “ accommodates and does not int erfere with standard technical measures. . . that are used b y copyrigh t owners to identify or protect copyr ighted works.” 17 U.S.C. § 512(i). McGucken’s focus on the uncontested fact that Shutterstock re moved metadata from som e of his photograp hs is mis plac ed be cause he has not introduced any evide nce that metadata con stitutes “a standard techni cal measure.” See BW P Media USA Inc. v. Polyvore, Inc., 922 F.3d 42, 56 n.9 (2d Cir. 5 McGuck en’s a sserti on tha t Shut terst ock has b een s ued by other a lleged right s holder s for copyrig ht infringeme nt, see Appellan t’s Br. at 45, makes no cla im that those c ases inv olve d repea t infringe rs or are meritoriou s.

23 - 7652 McGucken v. Shutter stock, Inc. 20 2019) (Walker, J., con curring) (explain ing that plaint iff “as the par ty asserting tha t metadata is a stand ard technical measu re, has the bur den of proving it”). A “standa rd technical measure ” must, among other requi rements, “have been developed pursuant to a broad consensus of copyr ight owners and service providers in an open, fair, voluntar y, multi - industry stan dards proces s.” 17 U.S.C. § 512(i)(2)(A). McGucke n’s only record citation— a stateme nt from his e xpert th at defines metadata as a tool “[p]hotogr aphers rely on. . . to organize, sort, and track their wo rks both inside their studios an d across the internet,” 6 J. App’x at 19 56 — identifies no “conse nsus,” let a lone any “ multi - industry s tandards process” that would have reached such a consensus. B. Specific C riteria for Safe Harbor Pu rsuant to § 512(c) In addition to the for egoing three thresho ld criteria, which apply to all the safe harbor s create d by § 512, a defendant must esta blis h its elig ibi lity f or t he specific safe harbor it claims. Here, Shutterstoc k claims eligibil ity for the safe harbor create d by § 512(c), “whi ch protects the provider fr om liability for 6 McGucken cite s sever al artic les in his brief to sup port t his argume nt, but they we re not part of the summary judgment reco rd before the District Court. We will not consider t hem for the first time on appeal. See Amara v. Cig na Co rp., 53 F.4th 241, 2 57 n.8 (2d Cir. 2022).

23 - 7652 McGucken v. Shutter stock, Inc. 21 infringement that would arise ‘b y reason of the storage [of infri nging materials] at the direction of a use r.’” Vimeo II, 125 F.4th at 414 (q uoting 17 U.S.C. § 512(c)(1)). To qualify for this safe harbor, the service p rovider must not possess “actual” or “re d flag” know ledge of infr ingement. Viacom, 676 F.3d at 32; see also 17 U.S.C. § 512(c)(1)(A)(i)– (ii). A provide r obtains “red flag” k nowledge where it is “subjectively awa re of facts that would have made the s pecific infringe ment ‘objectively’ obv ious to a reasonable person.” Viacom, 676 F.3d at 31. On obtain ing either fo rm of knowledge, the provider must “ act[] exped itiously to remove, or disable access t o, the [infring ing] materia l.” 17 U.S.C. § 512(c)(1)(A)(iii); see also id. § 512(c)(1)(C). Separ ately, t he pr ovider must have “designated an agent to rece ive notifications of cla imed infrin gement.” 7 Id. § 512(c)(2). T he p rovider, of cour se, must also show that its “storage” of the infringing material was “at the dire ction of a user.” Id. § 512 (c)(1). Fin ally, the provider must “ not re ceive a f inancial be nefit direc tly at trib uta ble to th e infr ing ing a ctiv ity, in a case in which the s erv ice provider has the r ight and abil ity to control such acti vity.” Id. § 512(c)(1)(B). 7 McGucken d oes not co ntest that Sh utterstock satisfies this require ment, so w e do no t dis cus s it further.

23 - 7652 McGucken v. Shutter stock, Inc. 22 While we ag ree with the D istrict C our t that S hutter stock d id not po ssess actual or red flag knowledge an d that it acted expedi tiously to remov e infri nging material, we conc lude that triab le issue s of f act ex ists as to wheth er Shutte rstoc k’s storage of Mc Gucken’s photographs was “ at the direct ion of a use r” and whether Shutterstock “has the right and ability to control” the inf ringing activity at issue here. Id. § 512(c)(1). 1. Shutters tock Did Not Possess Actual or Red Flag Know le dge There is no genuine factual issu e as to whether Shutterst ock had “actual knowledge” of the alleged in fringemen t of McGucken’s images. C ontrar y to McGucken’s assert ion, Appel lant’s Br. at 35, an ear lier lawsuit o ver another artis t’s work against Shutterstock concerning one of the contributors who uploaded some of McGucken’s photographs fails to e stablish “actua l knowledge,” s ince § 512(c)(1)(A)(i) requires aware ness of the “ specific instances of infringement. ” Viacom, 676 F.3d at 3 1 (emphasis added). Nor has McGucken adduced evidence th at Shutterstock “was subjectively aware of facts tha t would have made the specif ic infring ement ‘ obje ctively ’ obvious to a r easonable per son.” Id. at 3 1. McGucken asserts tha t Shutterstock reviewed the metad ata for his images, and that such me tadata would h ave

23 - 7652 McGucken v. Shutter stock, Inc. 23 suggeste d that he was the auth or, or at l east tha t the contr ibutor who s ubmitted the image was not the author. Bu t McGucken cites nothing in the record suggesting that any Shutterstoc k employee ever reviewed the metadata (or lack thereof) associated with h is images that were uploaded to th e platform. To the contrary, the r ecord indicates th at Shutte rstock employees do not interact with images’ origina l metadata. See J. App’x at 241 (Shutterstock emplo yee attesting that “Sh uttersto ck’s system automa ticall y removes any and all metad ata associated with the images uploaded by contributors,” that “Shu tterstock’s employees are not i nvolved in this proc ess,” and that an y origin al metada ta “is removed by the time any Shutterst ock employee or review er sees it”). 8 Thus, th e record does not s upport a f inding of “red f lag” know ledge. See Vimeo II, 125 F.4th at 419 (explainin g that, while a defendant has the burden of proof to sho w “entitl ement to the safe harbor,” the plai ntiff has the burden when it co mes to 8 McGucken unpersuasi vely cites J. App’x at 1143 – 52 for the propo sition t ha t some one at Shutterstock reviewed the original metadata atta ched to his i mage s that includ ed his na me. The c ited exhibit does not i ndicat e tha t any one at S hutte rst ock a ctuall y revie wed the or igina l meta data associa ted with McGuc ken’s i mages, b ut instead mer ely that Shutterstock received metadata with McGucken’s photogr aph s. That i s insu fficient to e stablis h Shutte rstock’ s subjectiv e awa reness of t he metada ta. See Viacom Int'l, Inc. v. YouTu be, Inc., 676 F.3d 19, 31 (2 d Cir. 2012) (explaining t hat red f lag knowled ge req uires the provi der to be “subjectively aware” o f the relevant facts and circumst ances).

23 - 7652 McGucken v. Shutter stock, Inc. 24 knowledge). McGucken has fa iled to meet his b urden to show that Shut terstock had “actual” or “re d flag” know ledge of its infringe ment. 2. Shutters tock Acted Expe ditiously to Remove Infringing Ma terial Shutterstock’s re moval of the noticed images with in four days of McGucken’s D MCA comp liant t akedown not ice w as suff icient to f ulf ill it s obligation to “respon d[] expeditiously to r emove, or disab le access to,” infringing material. 9 17 U.S.C. § 512(c)(1)(C). 3. Shutters tock Has No t Established That Infr ing emen t W as “ By Reason of th e Storage at the D irection of a Use r” of User Up loaded Materia l To satisfy § 512(c)(1), Shutterstock’s b urden is to es tablish that an y infringing acts happened “ by reas on of the storage at the direction of a us er of material that resides ” on its platform. Id. McGucken’s princip al theory is that his images did not appear on Shutterstock’s plat form “at the direct ion of a user” wit hin the meaning of § 512(c)(1) because S huttersto ck curates its collection of image s for display and 9 McGuck en con tends that Shutt erst ock did not me et this obli gati on bec ause t humb nail s of his images re mained o n Shutt erstock’ s Applica tion Pr ogra mming Inte rface partners’ websites fo r several months, and because t hird - party lic ensees c ontinue d to use h is image s. Appella nt’s Br. at 36 – 37. B ut al l that Shutterstoc k was requi red to do u nder the pla in te xt of § 512(c)(1)(C) was “re move ” or “dis able acce ss” to the ima ges on it s platform, and McGucken does n ot contest tha t Shutter stock ex peditiously d isabled public acc ess to the U RLs on its o wn syste m that his DMC A complian t notice ide ntified.

23 - 7652 McGucken v. Shutter stock, Inc. 25 sale, as opposed to operating an autom ated system th at pa ss ively ingest s and displa y s user -uploaded image s. As a general matter, § 512(c) does not extend to material “tha t resides on the system o r network operated by or for the servic e provider through its own acts or decisions and not at t he direction of a use r.” H.R. Rep. No. 105 - 551, pt. 2, at 53 (1998) (emphas is added). The task for courts app lying § 51 2(c)(1) is to dec ide whether a g iven service pro vider p lays a suf ficie ntly active role in the process by which material app ears on its platform such that, as a result, its storage an d display of inf ring ing material is no longer meaningfully at the user’s direction. To justify summ ary judgment in its favor on this iss ue, Shutte rsto ck mus t show th at, on the record before this C ourt, no reaso nable factfinder could con clude that it played such a role. Much of our caselaw app lying § 512(c)(1) has focused on what a service provider may permiss ibly do with a user’s content once it has be en uploaded to the provider’s platfo rm. For example, w e have held that the “512(c) safe harbor extends to software f unctions performed ‘ for the purpose of fa cilitating access to user - stored materi al.’” Viacom, 676 F.3d at 39 (q uoting UMG Recordings, Inc. v. Veoh Networks, Inc., 620 F. S upp. 2d 1081, 1088 (C.D. Cal. 2008)). Accordingly, soft ware

23 - 7652 McGucken v. Shutter stock, Inc. 26 functions like transcoding, cop ying, and playback of user - uploaded ma terials have fallen wi thin the amb it of the sa fe harbor. See id.; Pol yvore, 922 F.3d at 44. But our cases largely l eave unanswered the key q uest ion before us here: what does it mean for materials t o appear on a platform “at the d irection of a user” in the firs t place? The N inth Cir cu it’s approach to answering this que stion provides a helpful starting point. “ Infr inging materi al is st ored at the d irection of the user if the service provider p layed no role in making that infringing mate rial accessible on i ts site or if the servic e provid er carried out activities that were ‘narrowl y directed’ towards enhancing t h e accessibilit y of the posts. ” Ventura, 885 F.3d at 606 (quotin g Mavrix Photographs, LLC v. Live J our nal, Inc., 873 F.3d 1 045, 1 056 (9th Cir. 2017)). Thus, p r ovid ers may fa ll outside the ambit of § 512(c) where they “actively participate in or super vise file uploading,” UMG Recor dings, Inc. v. Shelter Cap. Partners LLC, 718 F.3d 1006, 1020 (9th C ir. 2013), exe rcise editorial judgment in determi ning what to host, see Ventura, 885 F.3d at 607, or engag e in a manua l and substantive review of the content that appears on their p latform th at ex tend s beyond a review “for infringement or other harm ful material,” Mavrix, 873 F.3d 1056.

23 - 7652 McGucken v. Shutter stock, Inc. 27 For our part, al though we ha ve not previously for mulated a ge neral standard, we have s uggested that when infringement is the r esult of “manual selection of copyrigh ted mat er ial, ” it may not be covered by § 512(c). See Viacom, 676 F.3d at 40. Our case law also make s clear that unde r § 512(c), service providers can review and screen u ser content before they store it on their platform witho ut becoming i neligible for safe harbo r, particularly w here the ability to exert control over the conten t that appears on the platform is necessarily limit ed by the sheer volume of uploaded us er content. See Vimeo II, 125 F.4th at 425 – 26. Other Circuits have likewis e held that § 512(c) permits service provide rs to review user submissions “for infr ingement or other har mful material like pornogr aphy.” Mavrix, 873 F.3d at 1 056; see also CoStar Gr p., Inc. v. LoopNet, Inc., 373 F.3d 544, 556 (4th Cir. 2004) (concluding that service providers can q ualify for the § 51 2(c) safe harbor while e nga ging in “cursory” screening of user uploads to weed out irreleva nt or inf ringing materi al); BWP Media USA, Inc. v. Clari ty Digit. Grp., LLC, 820 F.3d 1175, 1181 (10th Cir. 2016) (reach ing the same conclusion with respect to service p roviders that subject user cont ent to “a screening or automated pro cess”). Thus, d et er minin g the nature of the servic e provider’ s review of user materials is cen tra l to an alyz ing the app lica bility o f § 5 12(c)(1). A service provider

23 - 7652 McGucken v. Shutter stock, Inc. 28 may engage in rote and mechanica l content screening, like e xcluding unlawful material, enforcing t erms of service, or limiting uploa ds “to selected categories of consumer p references,” Vimeo II, 125 F.4th at 425, without f alling outside the ambit of § 512(c)(1). On th e other hand, a service provi der is likely to run af oul of § 512(c)(1) if it i s applying its aesthetic, editorial, or mark eting judgment t o determine which user uploads it accepts. Certain facts can provide re levant ind icia of the type of screeni ng a service provider is engaged in. For instan ce, the durat ion of review — that is, how long each piec e of user content is under review before i t is a pproved or reject ed —and the proportion of user uploads that the service prov ider accep ts are releva nt factors to res olvin g th e inqu iry. Like wise, the fact that a servi ce provider conduc ts human review rather than screening images wit h software may indica te that its content review is m ore substan tive than cursory. But none of these factors is dispositive, and they cannot sub stitute for the ulti mate fac tual inqu iry in to the nature of the service provider’s screenin g of user uploads. See, e.g., CoStar Grp., 373 F.3d at 54 7 (finding tha t a service provider qualified for the 512(c) safe harbor despite having huma n agents “cursorily re view[] user uploads to determine whether the ph otograph in fact depicts co mmercial real est ate, and (2) to identify

23 - 7652 McGucken v. Shutter stock, Inc. 29 any obvious eviden ce. . . that the photograph may have been copyrighted by another”). Taking all this together, we ado pt the followin g general rule: if a service provider en gages in manual, substantive, and discreti onary review of user content — if, on a case - b y - case basis, it i mpose s it s ow n aes the tic, e ditorial, or marketing judg ment on the content that appears on its platform — then its st orage of infringing mate rial is no longe r “at the direction of a user.” In other words, “e xtensive, manua l, and substantive” fro nt - end screening of user content is not “accessibility - enhancing” and is not p rote cted by the § 51 2(c) safe harbor. Mavrix, 873 F.3d at 1056. That is because, where service providers engag e in their own discretionary scree ning of user con tent, th ey can no longer b e said to be act ing “solely to facilitate access by user s.” Polyvore, 922 F.3d at 58 (Wa lker, J., concurring). Thus, here, whether Shutterstock satisf ies § 512(c)(1) depe nds on a factual determination abou t the nature of its review: whether it is more a ptly characterized as cur ating its own pho to library or as imposi ng m inimu m po licy standards to faci litate access to user conte nt on its platfor m.

23 - 7652 McGucken v. Shutter stock, Inc. 30 T here is evid ence in the record that suggest s Shutters tock’s review of user images is neither c ursory nor automatic. To begin, when a user submits an image to Shu tterstock, the imag e does not imme diate ly a ppear on the website; rat her, the contribu tor mu st w ait, so metimes for h ours, until they receive an email from Shutterstock lett ing them know which of their i mages were ac cepted. See J. App’x at 1293, 1302, 1316. Th at fact is n ot dispo sitive, but it su ggests some in terven tion by Shutte rstock between a u ser upload and the appe arance of materia l on the platform. Moreove r, Shutter stock’s websi te states that i t “has h igh stan dards and only accepts a p ortion of the image s submitted t o be included in [its] c ollec tio n.” Id. at 1071. Indeed, Sh utterstock maintain s a page on its websit e that e xp lains why an image mi ght be rejected a nd provides a dvice for successful s ubmissions. Id. at 1071– 88. There ar e “30 - odd” r easons that an image migh t be rejected by a Shutterst ock reviewer, id. at 1294 – 95, wh ich in clud e focus, exposure, lighting, and noise, id. at 1071–75. T he record also contains evidence that Shutterst ock’s reviewers exerci se some subjective discret ion even whe n applying seemingly rote and straightforward cri teria. For instance, when consider ing an image’s focus, Shutterst ock reviewers are “tra ined to know the d ifference bet ween somet hing

23 - 7652 McGucken v. Shutter stock, Inc. 31 that’s just out of focus and something th at’s more intentional.” Id. at 1341 –42. And according to Shut terstock, a reviewer may st ill accept an image that has foc us issues if it is “a really unique s hot” or a “hard shot to get.” Id. at 1297. That is because, as Shu tterstock has exp lained, “there’s no way to predict what a customer is looking for,” so although “Sh utterstock wants to ha ve a high - qualit y librar y [,] . . . [t]her e’s a lot o f value in. . . sh ots tha t might n ot be per fect.” I d. at 1296–97; se e also id. at 1366 (Shutter stock emplo yee explain ing that revie wers app ly “a base guide line. . . bu t at the s ame time, it’s not a blac k -and- white standar d”); id. at 1367 (“As o ur reviewers ar e humans, the y obviously c an think for [themselves]. We gi ve them guidelines and we try to give t hem the be st too ls possible to review photos and to use the ir best judgment base d on the guidelines we give the m.”). In the end, as Shu tterstock itself concedes, “ photography is an art . . . you can’ t just say, ‘T his is y es, this is no.’” Id. at 1362. Together, these statements could le ad a factfinder to con clude that Shutterstock’s revi ewers exercise a con siderable degree of case- by -case aesthe tic or editorial judgment when determining which images to a llow on the platform. Shutters tock co unter s that its fro nt - end screening is rote and mechanical — that its reviewers consider only “apparent technical issues or poli cy violations.”

23 - 7652 McGucken v. Shutter stock, Inc. 32 Appellee’s Br. at 7. And inde ed, there is evidence in the recor d that support s that characterization. For one, as Shutters tock emphasi zes, a reviewe r typically spends no more than 10 to 20 seconds examining an image. Further, t here is evidence in the record that appr oximately 93 p ercent of subm itted image s are approved for the pla tform. J. App’x at 1312. A factfinder might conc lude that such a high “success” ra te supports an inference t hat it is the users, and not Shut terstock’s reviewers, who dictate th e images that appear o n the site. But th o se f acts are not enough to dete rmine, as a m atter of law, th at Shutters tock does not exert sufficient control over user activities to fall outside the § 512(c) safe harb or. See Clarity, 820 F.3d a t 1181 (“Key to [§ 512(c)(1)] is contro l.”). Of course, appr oving a high ra te of submitted images could indicate th at Shutterstock’s i mage screening is limited and permiss ive. Altern atively, a high image acceptance r ate could sug gest that S hutterstock’s contr ibutors kno w what types of images are like ly to be a pprove d and proactive ly curate their own submissions. Cf. Ma vrix, 873 F.3d at 1058 – 59 (ident ifying “detailed instr uctions” for contributors as one way that a service provider can exercise control of user activ itie s (q uoting Perfect 10, Inc. v. Cyber net Ventures, Inc., 213 F. S upp. 2d 1146, 1173 (C.D. C al. 2002))). Indeed, the reco rd suggests that one reason Shutterstoc k

23 - 7652 McGucken v. Shutter stock, Inc. 33 gives its contributors guidance on the images to submit is to reduce the likelihood that an im age will be rej ected. See J. App ’x at 1345 – 49, 1356. 10 Simila rly, a pla tform that successfully coaches its contributors on the types of images it prefers to displa y may generally have to spend less tim e reviewing each ind ividual ima ge. 11 Therefore, w hile a low acc eptance rate may i ndicate that a platform is sele ctive in the content it accep ts, a relati vely high acceptance rate do es not invariabl y establish the opposite. We conc lude th at Sh utters tock ha s not met i ts burde n to estab lish that, as a matter of law, images appear on its platfor m “at the direction of a user” as required by § 512(c)(1). On remand, the factfinder must determi ne whether Shutt erstock’s review of user images imposes substantive and discretionary control over the material that appears on the platfor m. In particular, the fac tfind er should consider the degree t o which Shutt erstock’ s aesthetic and editorial judgment, impose d 10 There is als o testi mony suggesti ng that Shut terstock a dvise s its co ntributors on the types of i mages that are more likely to be licensed by use rs, s ee J. A pp’x at 1352 – 53, though t here is no e videnc e tha t Shutterst ock uses ma rketab ility as a n explicit c riteri on in its ima ge review, id. at 1295. 11 In any event, whe ther 10 t o 20 seconds is a short time t o review an ima ge is a quintesse ntial jury questio n.

23 - 7652 McGucken v. Shutter stock, Inc. 34 manually and o n a case - by - case bas is, determines which images ar e accepted on the pla tform. 4. Sh utterstock Has N ot Estab lished That It Lacks the “Righ t and Ability to Cont rol” Inf ring ing Ac tivit y Fina lly, on the current record, we cannot determine wheth er Shutterstock exerts the “ right and ability to con trol ” infringing co ntent pursuant to § 512(c)(1)(B). As we recently explained, § 512(c)(1) (B) “ appl [ies ] in circu mstances when the servic e provider has exercised ‘substantial influence’ over user ac tivities.” Vimeo II, 125 F.4th at 423 – 26, 428. Thus, much like o ur inqu iry under § 512(c) (1), determi ning whether Shut terstock sa tisfies § 512(c)(1)(B) turns on the degree of influence that it exert s over the content that appears on its platform. To be gin, in Vi meo II, we said that the “coe rcive effect and frequency” of a service provider’s “intrus ions into user autonomy over their posts” are two important factors in determ ining whether it h as exercised “substantial influenc e” for purposes of § 512(c)(1)(B). Vimeo II, 1 25 F.4th at 42 5. We explained that where a service provider’s control over use r activities is limited to promoting or demot ing ce rta in ma ter ial w ithin its p latfo rm, rathe r tha n de cidin g wh ich mater ia l to allow on the platform at all, its influe nce is mu ch less substantial. See id. at 424 –

23 - 7652 McGucken v. Shutter stock, Inc. 35 25. We likewise distingui shed between service provid ers that review only a subset of user ma terial from those t hat review every post that use r s seek to upload. Id. Still, a serv ice provider does no t necessarily exercise substan tial influence over user act iviti es merely becau se it screens ev ery uplo ad before it appears on i ts platform. As we ex plaine d in Vimeo II, Congre ss likely did not in tend “to deny eligibil ity for the safe harbor to entrepreneurs merel y because they sought to exclude c ontent that violat es other laws or becau se they soug ht to design sites t o make them appe aling to selec ted categorie s of consume r preferences.” Id. at 425. Accordingly, we deci ded that a video - shar ing p latfor m cou ld p erm issib ly imp ose content gatekeeping criteria that “were in the nature of (i) avoiding illegality and the risk of offend ing viewer s and (ii) des igning a webs ite that would be appeal ing to users wit h particular int erest s.” Id. On the other hand, substantial influence f or purposes of § 512(c)(1)(B) can exist “w here the service provider i nstituted a monitori ng program by which user websites receive d ‘detailed ins tructions re gard[ing] issues of layout, appearance, and content.’” Viacom, 676 F.3d at 38 (a lte ration in or igin al) (quotin g Cybernet, 213 F. Supp. 2d at 1 173); s ee also Wolk, 8 40 F. Sup p. 2d at 7 48 (“[S]uch a right an d ability

23 - 7652 McGucken v. Shutter stock, Inc. 36 to cont rol must take the fo rm of prescreen ing cont ent, rendering extensi ve advice to users regarding content and ed iting user conten t.”). L ike our analysis of § 512(c)(1), t he rel evant inqu iry here is whether the image pipeline Shutterstock has co nstructed — which begins with its leng thy guide lines for succ es sful su bm ission s a nd e nds with man ual imag e rev iew — enables Shutt erstock to exercise substa ntial control over the images t hat appear on its platform. There is evidence in the record su ggesting “intrusions into user autonomy over thei r posts” that exceed the bounds set by Congress for the § 512(c) safe harbor. Vimeo I I, 125 F.4th at 425. As an initial matter, S hutter stock screens every image before i t appears on the p latform — this screening determin es whether an image ever g ets on the platform. By way of contrast, in Vimeo II, “[c] alling attention to selected videos by giv ing them a sign of approva l or displaying them on a Staff Picks chan nel ... did not restrict the freedom o f users to post what ever videos they wished. ” Id. Also in contras t to Vimeo II, there is evidence here tha t Shutterst ock’s image review goes beyond the limited purpose s of restricting the site to “selecte d categories of con sumer preferences” and exclud ing unlawfu l image s. Id. Rather than engaging in cate gorical content screening — like accep tin g

23 - 7652 McGucken v. Shutter stock, Inc. 37 only ho lid ay - the med images, or i mages that feature an imals — Shutterstock appears to screen user images for their overall a esthetic quality. Curating a “collection,” J. App’x at 1071, of high - q uality images is not the same as designing a website “ that would b e appeal ing to us ers with part icular i nterests,” Vimeo I I, 125 F.4th at 425. Further, as McGucken has argued, there i s some evidence in the record t hat Shutterst ock extensively advises potential contributors o n the types of images it is like ly to acc ept. See J. App’x at 1071 – 88. Tha t is unli ke the service provid er in Vimeo II, which “encourag ed users to create cer tain types of content,” b ut did not conditi on their ability to post material on whet her they created the provider’s preferred typ es of content. Vimeo II, 125 F. 4th at 416. In deed, in Vimeo II, we cited a website’s prac tice of giving “ its users e xtensive advi ce on c ontent” as one fact that can distinguish a s ervice provider that has the right and ability to contro l infringing act ivity from one that does n ot. Id. at 4 2 3 (c itin g Cybernet, 213 F. Supp. 2d at 1173). Accordingly, on the curre nt record, a r easonabl e factfinder might conclude that the advice and instruction Shutterstock provide s its contributors, coupled with its image screening process, are sufficiently coercive to constitute subs tant ial inf luenc e.

23 - 7652 McGucken v. Shutter stock, Inc. 38 Finally, for the same reasons articulated above, the duration of Shutterst ock’s image revi ew and its 93 percent a pproval rate a re relevant facts, but they are not disposit ive. See supra Sect ion II. B.3. U ltima tely, it is th e fac tfind er’s role to d etermin e the degre e and significan ce of Shutterstock’s solicitation and screening o f user content. 12 CONCLUSION For the foregoing re asons, the D istr ict C ourt ’s ru ling is AFFIRM ED on McGucken’s false C MI claims brought unde r 17 U.S.C. § 1202(a)–(b) and VACATED on M cGucken’s copyright infringement claims brought under 17 U.S.C. § 106. 13 We REMAND to the D istr ict C ourt for further proceedings consistent with this opinion. 12 As summarized above, § 512(c)(1)(B) requires, in fu ll, that th e service provider “does not receive a financial b enefit d irectl y attr ibutable t o the infr inging a ctivity, in a case i n whic h the serv ice pr ovider has the rig ht and abi lity to c ont rol suc h ac tivi ty.” Beca use t he D istrict Co urt ruled i n Shutterst ock’s fa vor on § 512(c)(1)(B) based on its conc lusion that S hutterst ock lacked the “right and a bility to c ontrol” the infringin g activit y at issue i n this case, it did n ot rea ch a conclus ion a s to the second § 512 (c)(1) (B) prong: whether S hutterst ock recei ves “a financial be nefit dire ctly attributa ble to the infringi ng activit y.” W e note that this pron g may b e rele va nt to proce edi ngs on re m and. 13 McGucken ’s argume nt for inju nctive re lief is una vailin g. None of t he 337 images identif ied in this lawsuit r emain o n Shutte rstock’s platfor m, and S hutt erstock se nt “kill notices” to the third p arties who licensed t he images. J. App’x at 254. We see n o grounds for injun ctive relief under these c ircumstances.