How Long is Too Long? Boffoli Sues Google for Delay in Take Down

Use of one of Boffoli's Photographs on http://ediideas.blogspot.com as shown in his Complaint

Use of one of Boffoli’s Photographs on http://ediideas.blogspot.com as shown in his Complaint

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Christopher Boffoli is a fine art, editorial, and commercial photographer who created “Big Appetites,” a series of photographs featuring tiny figures next to life-sized food. He has a history of protecting his photographs, as reported here and here. As part of his prosecutions, he sued Twitter in September 2012 for not removing his photographs after sending a DMCA takedown notice. While some doubted the strength of his claims, we will never know how the court would have ruled as Boffoli dismissed his case in October 2012 before Twitter filed an answer.

Boffoli now has filed suit (Amended Complaint shown here) against Google for similar claims, alleging that Google failed to take down infringing uses of his photographs on a website (as shown in Exhibit A) hosted on one of Google’s servers more than 100 days after he sent Google a DMCA Notice (as shown in Boffoli’s Exhibit C to his Complaint). Google denies many things in its Answer to the Complaint, but “admits only that it did not disable access to any webpage or content on the website http://ediideas.blogspot.com prior to April 9, 2014 in response to Plaintiff’s notice.”

The issue is whether Google is liable for contributory copyright infringement in this case. “One contributorily infringes when he (1) has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement.” Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 795 (9th Cir. 2007). A “knowing failure to prevent infringing actions” can be the basis for imposing contributory liability. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007). Google is seeking protection under Safe Harbor provisions of the DMCA found at 17 USC 512, among other things. 

Boffoli’s case is important for photographers as they continue to battle widespread infringements, often relying on DMCA takedown notices as the only viable way to stop infringing uses of their photographs.

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