Opinion Summary: Sinclair v. Ziff Davis, LLC and Mashable, Inc., 18-CV-790 (KMW) (June 24, 2020)

Factual and Procedural Background

Plaintiff Stephanie Sinclair filed suit against Defendants Ziff Davis, LLC and Mashable, Inc., and the Court previously issued an Opinion dismissing Sinclair's Second Amended Complaint. Sinclair moved for reconsideration under Local Civil Rule 6.3 and Rule 59 of the Federal Rules of Civil Procedure. The Court granted reconsideration in part, revised its prior ruling regarding whether Instagram granted Mashable a sublicense to embed Plaintiff's photograph, adhered to its prior holdings in other respects, denied Defendants' motion to dismiss as to Mashable, granted the motion as to Ziff Davis, and directed the Clerk to reopen the case.

Legal Issues Presented

1. Whether Plaintiff's motion for reconsideration should be granted under Local Civil Rule 6.3 and Rule 59 of the Federal Rules of Civil Procedure.
2. Whether Instagram's Terms of Use and Platform Policy, as alleged in the pleadings, show that Instagram granted Mashable a sublicense to embed Plaintiff's photograph such that Mashable's sublicense defense supports dismissal of the copyright claim at the motion-to-dismiss stage.
3. Whether Plaintiff sufficiently pleaded a claim of copyright infringement against Ziff Davis based on allegations that Ziff Davis controlled Mashable, or whether dismissal is required absent an allegation of "substantial continuing involvement."

Arguments of the Parties

Plaintiff's Arguments

• Plaintiff sought reconsideration of the Court's prior Opinion under Local Civil Rule 6.3 and Rule 59.
• Plaintiff argued that the Court relied on the wrong version of Instagram's policies, that she never agreed to Instagram's Terms of Use, and that any purported agreement with Instagram was unsupported by consideration. The Court characterized these contentions as without merit or procedurally improper because they were not previously raised.

Mashable's Arguments / Evidence

• Mashable presented Instagram's Platform Policy as evidence that Instagram provides APIs "to help broadcasters and publishers discover content, get digital rights to media, and share media using web embeds," which Mashable argued amounted to a sublicense permitting it to embed Plaintiff's public Instagram content.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99 (2d Cir. 2013)	Standard for granting a motion for reconsideration (intervening change of controlling law, new evidence, or need to correct clear error or prevent manifest injustice).	Used to state the strict standard governing reconsideration and to frame whether reconsideration was appropriate.
Virgin Atlantic Airways Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245 (2d Cir. 1992)	Authority quoted in defining the reconsideration standard.	Cited in support of the standard that guides reconsideration motions.
Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995)	Reconsideration is "strict" and generally denied unless the moving party points to controlling decisions or data the court overlooked.	Relied upon to emphasize that reconsideration is not a vehicle to relitigate issues and is granted only in limited circumstances.
Sequa Corp. v. GBJ Corp., 156 F.3d 136 (2d Cir. 1998)	Rule 59 is not for relitigating old issues or presenting the case under new theories.	Used to caution against treating reconsideration as a second opportunity to reargue merits.
Ward v. Nat'l Geographic Soc., 208 F. Supp. 2d 429 (S.D.N.Y. 2002) (Kaplan, J.)	A copyright license must convey the licensor's "explicit consent" to use a copyrighted work.	Applied to require that sublicense evidence show explicit consent; the Court acknowledged it had not given full force to this requirement in its prior Opinion.
Gardner v. Nike, Inc., 279 F.3d 774 (9th Cir. 2002)	Principle concerning the need for explicit consent in licensing contexts (quoted in Ward).	Cited in support of the explicit-consent principle referenced in Ward.
McGucken v. Newsweek LLC, No. 19-CV-9617, 2020 WL 2836427 (S.D.N.Y. June 1, 2020) (Failla, J.)	Interpretation that similar platform terms may be ambiguous and that such ambiguity can preclude dismissal on license grounds at motion to dismiss stage.	Deemed persuasive and influential in concluding that Instagram's Platform Policy is not sufficiently clear to support dismissal of Sinclair's claim against Mashable at this stage.
Agence France-Presse v. Morel, 769 F. Supp. 2d 295 (S.D.N.Y. 2011) (Pauley, J.)	Courts may find a license on a motion to dismiss where the terms of the governing contracts are clear.	Quoted to explain that although a license can support dismissal when contract terms are clear, the Platform Policy here is insufficiently clear to warrant that result.

Court's Reasoning and Analysis

The Court began by restating the standard for reconsideration and noting the strict limits on such motions. Applying that standard, the Court granted Plaintiff's motion for reconsideration in order to correct what it concluded was a clear error in its prior Opinion concerning whether the pleadings established that Instagram had granted Mashable a sublicense.

The Court adhered to its prior determination that Plaintiff's agreement to Instagram's Terms of Use authorized Instagram to grant API users a sublicense in principle. However, the Court revised its prior conclusion that Mashable had in fact received or exercised such a sublicense as a matter of law. Mashable had relied on Instagram's Platform Policy language indicating that the API helps publishers "discover content, get digital rights to media, and share media using web embeds." The Court recognized that this language could be read to permit embedding, but also observed that the language is susceptible to other interpretations.

Relying on the principle that a license must convey the licensor's "explicit consent" (citing Ward and related authority), and finding persuasive the analysis in McGucken that similar platform terms can be ambiguous, the Court concluded that the Platform Policy's terms are not sufficiently clear to permit dismissal of Plaintiff's copyright claim against Mashable at the motion-to-dismiss stage. The Court referenced Agence France-Presse v. Morel to acknowledge that a license can support dismissal where contract terms are clear, but determined those circumstances are not present here.

With respect to Ziff Davis, the Court adhered to its prior holding that Plaintiff's allegation that Ziff Davis "controls" Mashable was insufficient to state a claim for copyright infringement against Ziff Davis. The Court reiterated that Plaintiff would have needed to plead "substantial continuing involvement" by Ziff Davis in Mashable's alleged infringement, which she did not do.

Holding and Implications

The Court GRANTED Plaintiff's motion for reconsideration in part; DENIED Defendants' motion to dismiss as to Mashable; and GRANTED Defendants' motion to dismiss as to Ziff Davis.

Direct consequences for the parties:

• The Court revised its prior ruling and concluded that, on the current record and pleadings, the Platform Policy is not sufficiently clear to establish as a matter of law that Instagram exercised a right to grant Mashable a sublicense. Accordingly, Sinclair's copyright claim against Mashable survives dismissal at this stage.
• The Court maintained dismissal of the copyright claim against Ziff Davis because Plaintiff did not plead the required "substantial continuing involvement" by Ziff Davis in Mashable's alleged infringement.
• The Clerk of Court was directed to reopen the case.

The opinion does not articulate broader legal implications or announce a new governing rule; it revises the Court's prior factual/legal assessment on the record before it and applies existing principles to conclude that dismissal is not warranted as to Mashable on the current pleadings.