IP Law Daily, COPYRIGHT—N.D. Cal.: Email promotion of Pinterest feeds qualifies for DMCA safe harbor, (Jan 6, 2026)

By Matthew Hersh, J.D.

The emails qualified, even though they reached users off the platform, because they were generated to promote accessibility to user-generated content.

A popular social media company that shared user-uploaded photographs through promotional emails was eligible for a statutory safe harbor for storage of user-generated content even though the emails reached users outside of the confines of the social media platform, the federal court for San Jose, California, has held. The court, in granting summary judgment to the social media company, also highlighted the continuing lack of clarity in Ninth Circuit doctrine over which party bears the burden of persuasion in safe harbor cases (Harrington III v. Pinterest, Inc., No. 5:20-cv-05290-EJD (N.D. Cal. Jan. 5, 2026)).

The lawsuit arises out of a dispute between a photographer and Pinterest, a popular social-media website that encourages users to upload content and share it with others along with a link—known as a “Pin”—that leads users to third-party websites with similar content. Pinterest displays a custom series of user-uploaded Pins to individual users via “feeds”—grids of Pins curated by machine learning algorithms and calculated to be interesting to individual users. Pinterest also displays feeds to users in notifications outside the Pinterest platforms, including mobile push notifications and emails.

It is the latter form of activity that led to this lawsuit. In July 2020, Pinterest sent one such email notification to a photographer, Blaine Harrington, that displayed an image of Harrington’s own copyrighted photograph of a beach scene titled “Waikiki Beach, Honolulu, Oahu, Hawaii, USA.” Harrington sued for copyright infringement shortly thereafter (a family member Maureen Harrington, was substituted in after the photographer’s death). After discovery in the case, Pinterest moved for summary judgment, leading to this opinion.

Applicability of safe harbor test to off-platform activity. The court found that Pinterest’s conduct was protected by the safe harbor provision of the Digital Millennium Copyright Act, or DMCA. Section 512(c) of that act, codified at 17 U.S.C. § 512(c), provides an avenue for service providers to avoid liability for copyright infringement “by reason of the storage at the direction of a user of material that resides on a system or network.” To qualify for that protection, the court noted, a service provider must make three showings: (1) the alleged infringement occurred “by reason of the storage” of copyrighted material “at the direction of a user” of its service; (2) Pinterest had no actual or red flag knowledge that the stored material is infringing; and (3) Pinterest either had no “right and ability to control” the allegedly infringing activity or did not directly financially benefit from the activity. Pinterest met all three prongs of this test, the court found.

The first test presented the hardest question, the court noted. A service that provides cloud storage is engaging in the clearest form of “storage at the direction of a user.” But the DMCA safe harbor for user-directed storage, the court noted, swept more broadly than simply cloud storage or so-called “electronic storage lockers.” Indeed, the court noted, Congress contemplated that “storage” within the meaning of Section 512(c) included “‘providing server space for a user’s web site, for a chatroom, or other forum in which material may be posted at the direction of users.” The touchstone, the court noted, was “public accessibility.” Indeed, under Ninth Circuit doctrine, the court noted, any activity that is “narrowly directed towards enhancing the accessibility of posts” is eligible for Section 512(c) safe harbor.

The off-platform notification emails in this case qualified for protection under that standard, the court found. Regardless of whether the infringing display occurs via a web browser or an email, the court found, the principles behind the safe harbor applied the same. In both cases, the court noted, Pinterest’s service merely provides the user’s software with a hyperlink. The software, be it a web browser or otherwise, the court noted, then requests the image the hyperlink corresponds to from Pinterest’s server and displays it. “Because both a hyperlink in an email and a hyperlink on a browser link back to images on Pinterest’s service,” the court concluded, “there is no clear reason why the first form of display would arise ‘by reason of the storage at the direction of a user’ while the second would not.” Thus, even though it reached the user off of the Pinterest platform, the court reasoned, the safe harbor could still apply.

Nor would allowing the safe harbor to apply in this case lead to absurd outcomes, the court found. Harrington contended that extending Section 512(c) safe harbor protections to infringement outside of Pinterest’s platform “would open the door for infringement on, for example, billboards in Time Square.” But Section 512(c) is “a fact-intensive inquiry,” the court emphasized. “Though possible, like all things, Harrington’s hypothesis would require extreme facts outside the bounds of this case. The email notifications here merely provide a link to Pinterest users of material uploaded by other Pinterest users, and therefore narrowly facilitates access to users’ posts by sharing them with other users.” By contrast, the court noted, “a billboard would presumably need to copy the image from the platform and display it to the general public—including those who are not Pinterest users—without providing a direct link to the user’s post. Such conduct would likely not be narrowly tailored at facilitating access to the user’s post.”

Actual or red flag knowledge of infringement. The court also found that Pinterest met the second prong of the test. To gain access to Section 512(c) safe harbor, the court noted, Pinterest must not “have actual knowledge that the material or an activity using the material on the system or network is infringing” and it also must not be “aware of facts or circumstances from which infringing activity is apparent.” (Courts often describe the term “apparent” within the meaning of Section 512(c) as “red flag” knowledge.) Here, the court noted, Harrington failed to point to any evidence that Pinterest had actual or red flag knowledge of the infringement. Indeed, the court noted, “the only relevant evidence here suggests that Pinterest had, at the minimum, no actual knowledge because Harrington never sent Pinterest a takedown notice or other prior communication identifying infringing material on the Pinterest service.” This prong was easily met.

Control and financial benefit. The court also found that Pinterest met the third prong. Notably, at the threshold of its analysis, the court had to confront some ambiguity in the law over which party had the burden of persuasion over this issue. Under Second Circuit doctrine, the court noted, a plaintiff bears the burden of persuasion in showing that the defendant was disqualified from the safe harbor because it received a financial benefit directly attributable to the infringing activity while having the right and ability to control such activity. But the Ninth Circuit, in the case of Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045 (9th Cir. 2017), held that the service provider bore the burden of proof on all four prongs. In a later case, the court noted, the Ninth Circuit introduced some ambiguity by imposing on copyright owners, rather than service providers, the burden of proof on the knowledge prong—leading many in the Circuit to take for granted that copyright owners now bore the burden of persuasion on the control and financial benefit prong as well. But without a case saying otherwise, the court found, Mavrix was still the rule with respect to that prong—meaning Pinterest would have to bear the burden of persuasion here.

Nonetheless, the court found, Pinterest easily met its burden here. With respect to the right and ability to control, the question was whether Pinterest demonstrated such control by it use of algorithms and advertisements to promote user content. But in another case against Pinterest on similar facts, the court noted, another court in the same district had found that Pinterest’s control over its algorithms and advertisements did not “constitute the kind of control that is necessary to lose safe harbor protection” under Section 512(c). That case was persuasive, the court found, because “the connection between Pinterest’s algorithms and advertisements is insufficient to show Pinterest’s right and ability to control the allegedly infringing display.”

Pinterest also met its burden to show that it did not receive a financial benefit directly attributable to the infringing activity, the court found. Here, the court noted, Pinterest argued that it does not obtain a financial benefit distinctly attributable to any specific user-uploaded content by presenting evidence that it does not display advertisements in its notification messages, “let alone in the notification containing Harrington’s work.” Moreover, the court noted, even if the evidence did show advertisements appearing alongside notifications, the court noted, “a direct financial benefit requires facts showing revenue derived specifically from Pinterest’s display of Harrington’s copyrighted photo. Showing that advertisements generally appear in notifications is not enough.” Summary judgment was therefore granted for Pinterest.

The Case is No. 5:20-cv-05290-EJD.

Judge: Davila, E.

Attorneys: Sue Jung Nam (Reese LLP) for Maureen Harrington. David H. Kramer (Wilson Sonsini Goodrich & Rosati) for Pinterest, Inc.

Companies: Pinterest, Inc.

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