Agence France Presse v. Morel (934 F. Supp. 2d 547, 2013)

OPINION

ALISON J. NATHAN, District Judge.

On March 26, 2010, Plaintiff Agence France Presse (“AFP”) filed a Complaint against photographer Daniel Morel seeking a declaration that AFP had not infringed Morel’s copyrights in certain photographs and alleging commercial defamation. (ComplA 3). In response, Morel filed counterclaims against AFP, Getty Images, Inc. (“Getty”), and the Washington Post (the “Post”), asserting that AFP, Getty, and the Post (collectively, “Counterclaim Defendants”) have willfully infringed his copyrights, and that AFP and Getty are secondarily liable for the infringement of others and have violated the Digital Millennium Copyright Act (“DMCA”). (See Dkt. No. 80). The parties now have filed cross-motions for summary judgment regarding liability on the copyright and DMCA claims, as well as certain legal questions regarding how damages are to be assessed should liability be found.

I. BACKGROUND

The Court has undertaken a thorough review of the record, particularly the evidence cited in the parties’ 56.1 statements and counterstatements. See Monahan v. New York City Dep’t of Corrections, 214 F.3d 275, 292 (2d Cir.2000); see also 24/7 Records, Inc. v. Sony Music Entm’t, Inc., 429 F.3d 39, 46 (2d Cir.2005) (noting that courts are not required to consider what the parties fail to point out in their 56.1 statements, although they may exercise their discretion to do so); Charter Oak Fire Ins. Co. v. Tri-County Fire & Safety Equip. Co., 636 F.Supp.2d 193, 197 (E.D.N.Y.2009) (“[I]t is only those portions of the record submitted in connection with a motion to which the court’s attention is specifically directed, that the court is obligated to consider in determining whether a material issue of fact exists.”). On careful consideration of the evidence, the following facts and disputes of fact appear from the record.

A. Morel Tweets Photos of the 2010 ' Haiti Earthquake

On January 12, 2010, a devastating earthquake struck Haiti. (Morel SMF ¶ 12; CC Def. CSMF ¶ 12; Morel Decl. ¶ 11). Morel, a photojournalist, was on scene and captured a number of images of the aftermath. (Morel SMF ¶¶ 1, 13; CC Def. SMF ¶1, 13; Morel Decl. ¶¶2, 12-14). Morel then posted his photographs to Twitter through a'TwitPic account. (Morel SMF ¶¶ 17, 21; CC Def. CSMF ¶¶ 17, 21; Morel Decl. ¶¶ 16, 19, 22; Hoffman Decl. Ex. U at Twitpic001-002).

The parties dispute — and the evidence is contradictory — as to precisely when Morel uploaded these photos. Morel contends that he uploaded them between 6:13 pm and 7:28 pm on January 12, 2010, an assertion supported by his declaration (Morel Decl. ¶¶ 22) and certain documentary evidence’ (Hoffman Decl. Ex. B, Morel Dep. Ex. 16 at 109). Counterclaim Defendants argue that he did so precisely three hours later, between 9:13 and 10:28 pm, and rely on other documentary evidence and deposition testimony establishing this timeline. (Hoffman Decl. Exs. U at TwitPic 18-20, Y; Winecoff Dep. at 12:17-13:3). Counterclaim Defendants’ position as to the timing of these events is, however, undercut by emails indicating Morel’s pictures were posted on the timeline he describes. (Morel SMF ¶¶41, 47; CC Def. CSMF ¶¶ 41, 47; Morel Decl. ¶¶22, 36-37; cf. also CC Def. CSMF ¶¶ 30-31). Based on the evidence before it, the Court cannot conclusively resolve the precise timing of these events. Regardless, shortly after Morel posted his pictures online — between 6:53 pm and 7:51 pm, if Morel’s timeline is accepted, or between 9:53 pm and 10:51 pm per the evidence presented by Counterclaim Defendants — they were reposted to the Twitter account of Lisandro Suero, who tweeted that he had exclusive photographs of the earthquakes. (Morel SMF ¶¶ 28-29, 38; CC Def. CSMF ¶¶ 28-29, 38; Hoffman Decl. Exs. B, Morel Dep. Ex. 16 at 109; Hoffman Decl. Ex. U at Twitpic 0002-0003, 0018-020).

B. AFP Obtains Morel’s Photos

Also on January 12, 2010, Vincent Amalvy, the Director of Photography for North America and South America at AFP was searching for photographs of the aftermath of the earthquake in Haiti. (CC Def. SMF ¶¶ 122, 124; Morel CSMF ¶¶122, 124; Amalvy Decl. at ¶¶ 2, 4). For example, at 7:12 pm he sent a link to the results of a PicFog search of the term “Haiti” to AFP’s photo desk at wapix@afp.com; later that hour, he sent images of the earthquake in Haiti (not captured by Morel) to this same address. (Morel SMF ¶¶ 31, 36-37; CC Def. CSMF ¶¶ 31, 36-37; Amalvy Dep. at 80:9-18, 98:2-99:8, 131:16-132:6; Hoffman Decl. Ex. E at AFP000833-834). Once a photo is provided to AFP’s photo desk, it is loaded to the AFP system for validation and captioning so that it can be distributed by AFP. (Morel SMF ¶¶ 77-78; CC Def. CSMF ¶¶ 77-78). AFP distributes such photographs through its international wire and a databank called Image-Forum, which allows subscribers to access the photos either as part of a subscription plan or on an “a la carte” basis. (CC Def. SMF ¶¶ 11-12, 14-15; Morel CSMF ¶¶ 11-12,14-15; Amalvy Decl. ¶ 2).

As the evening progressed, Amalvy continued to send pictures to the AFP photo desk, including at least one created by Tequila Minsky, sent shortly after 9:00 pm. (Morel SMF ¶¶ 53-55; CC Def. CSMF ¶¶ 53-55; Hoffman Deck Ex. E; Minksy Deck at ¶¶ 4, 7). As particularly relevant to this action, between 11:23 pm and 11:36 pm, Amalvy sent eight of Morel’s photographs to the AFP photo desk (the “Photos-aUssue”). (Morel SMF ¶¶ 21, 69-76; CC Def. CSMF ¶¶21, 69-76; Hoffman Deck Ex. E at AFP000813-818, 821-828).

C. Getty Receives Morel’s Photos

After their receipt by AFP, AFP transmitted the Photos-at-Issue, credited to Suero, to Getty. (CC Def. SMF ¶¶ 153, 156, 169; Morel CSMF ¶¶153, 156, 169; CC Def. SMF ¶ 170; Morel CSMF ¶ 170; Eisenberg Decl. ¶ 16; Amalvy Dep. Ex. 14-A; Amalvy Decl. ¶ 15). Getty distributes photographic images worldwide from a database of nearly 41 million images, allowing both subscribers and nonsubscribers to license these images, including on an “a la carte” basis. (CC Def. SMF ¶¶ 29-34; Morel CSMF ¶¶ 29-34; Calhoun Deck ¶¶ 2-5; Eisenberg Decl. ¶¶ 3-4). For users with subscriptions, the terms of these subscriptions determine the types or categories of images to which they have access, the purpose for which the images may be used, and the duration of permissible use; the use of content is also governed by the terms of licenses to that content. (CC Def. SMF ¶¶ 32-34; Morel CSMF ¶¶ 32-34; Calhoun Decl. ¶¶ 4-5).

At the time AFP forwarded Morel’s images to Getty, AFP and Getty had entered into a license agreement under which they granted reciprocal rights to, inter alia, display and license their images. (Hoffman Decl. Ex. AA; CC Def. SMF ¶ 46-47; Morel CSMF ¶ 46-47). As a result, AFP typically transmits roughly 1500 to 2000 images per day to the Getty system. (CC Def. SMF ¶ 48; Morel SMF ¶ 48; Bernasconi Decl. ¶ 6).

When AFP transmits an image to Getty through AFP’s feed, the image is first received and processed by Getty’s system, which runs certain automated checks to ensure, inter alia, that the image is properly formatted for Getty’s internal TEAMS database and reflects the required data for publishing. (Morel SMF ¶¶97, 99; CC Def. CSMF'¶¶97, 99;'Ei-senberg Dep. at 35:18-36:16; 40:24-41:5). If all the required data is present, the image is transmitted to Getty’s customer-facing website. (Morel SMF ¶ 99; CC Def. CSMF ¶ 99; Eisenberg Dep. at 35:18-36:16; 40:24-41:5). However, if the image does not have all of the data required for publishing, it will remain in Getty’s internal database, but will not be automatically published to Getty’s website. (Morel SMF ¶¶ 100-02; CC Def. CSMF ¶¶ 100-02; Eisenberg- -Dep. Tr. at 41:8-43:16). In such instances, human intervention may be required to correct the issue, allowing the image to publish to Getty’s website. (Morel SMF ¶¶ 104-06; CC Def. CSMF ¶¶ 104-06; Eisenberg Tr. at 43:17-49:7). When the Photos-at-Issue were transmitted to Getty, it appears such human intervention may have been necessary to allow the Photos-at-Issue to publish, although the precise nature of this intervention is disputed — particularly as to whether Getty altered information about the byline or caption identifying the photographer. (CC Def. SMF ¶ 156; Morel CSMF ¶ 156; Morel SMF ¶ 131; CC Def. CSMF ¶ 131; Eisenberg Decl. ¶ 16).

D. Efforts to Correct the Byline and Remove the Photos-at-Issue

On the morning of January 13, 2010, Benjamin Fathers at AFP questioned the attribution of the Photos-at-Issue to Lisandro Suero, e-mailing Amalvy at 4:36 am (EST) that “I’m not sure Lisandro Suero’s photos are his but they belong to Daniel Morel” with a link to Morel’s TwitPic page. (Morel SMF ¶ 119; CC Def. SMF ¶ 119; Fathers Tr. at 9:16-10:5, 25-29; Fathers Dep. Ex. 9 (AFP000421)). About an hour after Fathers e-mailed Amalvy, AFP issued a “caption correction” that went out to Image Forum, AFP’s wire, and AFP’s archive, that credited Morel for the Photos-at-Issue. (Morel SMF ¶ 123-24; CC Def CSMF ¶ 123-24; CC Def. SMF ¶ 173-74; Morel CSMF ¶ 173-74; Hambach Dep. Tr. at 192; Hambach Dep. Ex. 11). The caption correction did not, however, expressly state that the photographs that had already been credited to Suero should have been credited to Morel — rather, it stated that it was “CORRECTING BYLINE FOR FOLLOWING IMAGES Dec050/052/053/054/055/056/057/058 showing the destruction in Haiti following an earthquake measuring 7.8 in PorNauPrince. IMAGES SHOULD HAVE THE BYLINE OF DANIEL MOREL AFP PHOTO.” (Morel CSMF ¶ 174; Amalvy Decl. Ex. C). AFP also changed the photographer credit of the Photos-at-Issue in ImageForum and on its wire to Daniel Morel. (CC Def. SMF ¶ 181-82; Morel CSMF ¶¶ 181-82; Amalvy Decl. ¶¶ 18-19 & Exs. C & D; Fathers Dep. Vol. II at 41:13-44:10). As the morning of January 13, 2010, progressed, AFP continued to internally discuss the proper attribution of the Photos-aU-Issue, with Fathers noting that “it is very difficult to know to whom the photos belong, that’s one of the risks of twitter but we are going to be vigilant so that we find the right bylines,” and attempted to contact Morel. (Morel SMF ¶¶ 35-37; CC D'ef. ¶¶ 135-37; Fathers Dep. Tr. at 25:5-30:17; Fathers Dep. Ex. 1 (AFP000440), Ex. 12 (AFP000581); Ex. 12-B (AFP000618)).

The caption correction also was sent to Getty through AFP’s feed to Qetty and was distributed to Getty’s customers who received AFP’s content via Getty’s image feed, but was not displayed on Getty’s website. (CC Def. SMF ¶¶ 176-77; Morel. CSMF ¶¶ 176-77). AFP also transmitted re-credited copies of the Photos-at-Issue — most crediting Daniel Morel and a few crediting “David” Morel — to Getty, with a caption that read “EDITORS NOTE -- CORRECTING NAME OF PHOTOGRAPHER” with an updated photo credit “AFP PHOTO/DANIEL MOREL.” (Hambach Decl. ¶ 6; Eisenberg Decl. ¶ 17; CC Def. SMF ¶ 183-84; Morel CSMF ¶ 183-84). AFP transmitted several corrected versions of each of the Photos-aNIssue, but did not remove the photos credited to Suero from Getty’s system. (Eisenberg Decl. ¶ 17; Hambach Decl. ¶ 6). There is no mechanism in the AFP/Getty workflow that automatically locates and removes or updates photographs subject to a caption correction; rather, the photographs are simply resent to Getty’s system with the corrected information. (CC Def. SMF ¶ 186; Morel CSMF ¶ 186; Eisenbeg Decl. ¶ 18).

At 4:37-p.m. on January 13, 2010, Claire Keeley, Corporate Counsel at Corbis, Inc. (“Corbis”), e-mailed .Heather Cameron, a Senior Paralegal at Getty, alerting her that Morel had uploaded his pictures to Twitter, that the photos were being distributed “credited as Daniel Morel/AFP-Getty Images,” and that Morel was “exclusive to Corbis.” (Morel SMF ¶ 177; CC Def. SMF ¶ 177; Cameron Dep. Ex. 1 (G003806); Cameron Decl. ¶ 13 & Ex. C). Morel and Corbis had previously entered into a representation agreement.whereby Corbis was to be Morel’s exclusive worldwide licensing agent for images sent to Corbis. (Morel SMF ¶¶ 145^6; CC Def. CSMF ¶¶ 145-46; Morel Decl. ¶ 68 & Ex. E). Prior to Keeley’s e-mail, Morel had informed Corbis that he had not given Getty or AFP authorization to sell the Photos-aNIssue. (Morel SMF ¶ 167; CC Def. CSMF ¶ 167; Hoffman Ex. CC (COR 1693); Hoffman Reply Decl. Ex. G (COR 1020-21, 1030)). Keeley’s e-mail did not provide additional information to more particularly identify the photos to which she was referring, did not reference images credited to Lisandro Suero, and did not contain copies of the images themselves. (Cameron Decl. Ex. C). It did, however, indicate that Corbis planned on issuing notices under the DMCA later that day. (Cameron Decl. Ex. C).

Getty claims that after receiving this notice from Corbis, it searched for and removed all of the earthquake-related images attributed to Daniel Morel that it found on its customer-facing website. (CC Def. SMF ¶ 190; Cameron Decl. ¶ 15; Cameron Dep. Tr. at 16:3-21; Morel SMF ¶ 178, 180; CC Def. CSMF ¶¶ 178, 180). Cameron informed Keeley via an e-mail at 2:53 pm that these images had been removed and that the photos had been posted to Getty’s service by AFP, suggesting that Corbis should get in touch with AFP about the issue. (Morel SMF ¶ 177; CC Def. SMF ¶ 177; Cameron Dep. Ex. 1 (G003806); Cameron Decl. ¶ 13 & Ex. C). It is undisputed that Getty did not, at this time, remove the images credited to Suero. (CC Def. SMF ¶¶ 215-16; Morel CSMF ¶¶ 215-16; Morel SMF ¶ 225, 235-36; CC Def. CSMF ¶ 225, 235-36). Getty also does not dispute that after receiving this notification from Corbis on January 13, 2010, it was aware it had no right to license Daniel Morel’s photographs. (Morel SMF ¶ 240; CC Def. CSMF ¶ 240).

That evening, Cameron forwarded Cor-bis’s e-mail to employees of AFP, noting in addition that Getty had “pulled 24 AFP assets from our site this afternoon credited to Daniel Morel/AFP.” (Cameron Ex. C). That night, a Corbis employee contacted Amalvy, noting that he was “working on an infringement issue[] in which a twitter user by the name of Lisandro Suero posted images that [are] copyright protected by one of our exclusive photographers, Daniel Morel” and asking for assistance removing the images from AFP’s site and sites posting the images crediting “Lisandro Suero AFP/Getty.” (Morel SMF ¶ 186, CC Def. CSMF ¶ 186; Amalvy Dep. Ex. 16 (AFP00512)).

The next day, January 14, 2010, at 2:58 pm, AFP issued a “Kill Notice” which stated

MANDATORY KILL == MANDATORY KILL == MANDATORY KILL Due to a recent copyright issue, we kindly ask you to kill from all your systems Daniel Morel Pictures from Haiti. We are sorry for any inconvenience; thank you for your cooperation.

MANDATORY KILL == MANDATORY KILL == MANDATORY KILL

(Hambach Decl. Ex. A). The Kill Notice was distributed through AFP’s wire and in ImageForum, as well as being added to AFP’s archive and sent via e-mail to AFP subscribers who had previously requested to receive such notices. (Hambach Decl. ¶ 7-8; CC Def. SMF ¶ 196-99, 203; Morel CSMF ¶ 196-99, 203). After the Kill Notice was issued, AFP removed from ImageForum and its archive all photos credited to Daniel Morel. (Hambach Decl. ¶ 9; CC Def. SMF ¶ 206; Morel CSMF ¶ 206).

The Kill Notice was also sent to Getty’s feed, and thus to Getty’s customers who receive AFP’s content through that feed. (Hambach Decl. ¶7; CC Def. SMF ¶202; Morel CSMF ¶ 202). The Kill Notice did not identify specific image numbers used by Getty, provide thumbnails of the images in question, or provide notice that any of the Photos-at-Issue were credited to Suero or “David” Morel. (CC Def. SMF ¶ 208; Morel CSMF ¶ 208; Hambach Decl. Ex. A). However, the evidence suggests that the Kill Notice was reviewed — as was AFP’s earlier caption correction — by at least Getty employee Andreas Gebhard. (Morel SMF ¶228; CC Def. CSMF ¶ 228; Cameron Dep. Ex. 17 (G002964-2965)). Indeed, in response to an e-máil from AFP containing the Kill Notice, Gebhard replies “[h]andling” and later states “[y]ou guys [AFP] had re-sent them yesterday, to correct the photogs name, too.” (Morel SMF ¶ 228; CC Def. CSMF ¶228; Cameron Dep. Ex. 17 (G002964-2965)). Gebhard had also earlier seen Morel’s photos on Twitter in the evening of January 12, 2010. (Morel SMF ¶63; CC Def. CSMF ¶63; Hoffman Decl. Ex. Q, Bernasconi Dep'. Ex. 1).

On February 2, 2010, Corbis again contacted Cameron at Getty, noting that “Getty still has not removed the Daniel Morel images from its website” and directing Cameron to a link to a search for photographs credited to Suero. (Morel SMF ¶ 245; CC Def. SMF ¶ 245); Cameron Dep. Ex. 17 (G002961-62). Getty removed the images credited to Suero that night. (CC Def. SMF ¶216; Morel CSMF ¶ 216; Cameron Decl. ¶ 24; Eisenberg Decl. ¶ 22). None of the Photos-at-Issue remained available for licensing on Getty’s website after this point. (CC Def. SMF ¶ 217; Morel CSMF ¶ 217; Cameron Decl. ¶ 25; Eisenberg Decl. ¶ 22). Thereafter, and after being contacted by Morel’s counsel, Getty took efforts to reach out to its customers who had purchased the Photos-at-Issue and notify them regarding Morel’s copyright claim. (CC Def. SMF ¶¶ 219, 228-30; Morel CSMF ¶¶219, 228-30; Calhoun Decl. ¶¶ 17-19; Calhoun Dep. Tr. at 102:15-106:24, 187:19-192:17, 200:7-17, 212:21-213:18; Cameron Decl. ¶¶ 41-43; Cameron Dep. Tr. at 69:21-70:24).

E. The Post

The Post concedes that it received from Getty and published four of the Photos-at-Issue on its website, three credited to “Lisandro Suero/AFP/Getty Images” and one credited to “Daniel Morel-AFP/Getty Images.” (CC Def. SMF ¶¶ 234-35; Morel CSMF ¶¶ 234-35). Although the Post admits publishing some of the Photos-at-Issue, it denies that it did so with knowledge that they were infringing or that it should be held liable for willful infringement. Morel, however, points to a series of events that he contends demonstrates that the Post was on notice of its infringement and continued to display the Photos-at-Issue, rendering it liable for willful infringement.

Specifically, nearly two months after the earthquake, on March 9, 2010, Morel’s counsel, Barbara Hoffman, sent a letter to an officer of the Post’s parent company, Ann McDaniel, and via e-mail to TWPCo Reply@washpost.com, that stated that Morel had determined to allow the Post to display Morel’s photographs, but required them to correct the credit to read “Daniel Morel.” (CC Def. SMF ¶¶ 240, 242; Morel CSMF ¶¶ 240, 242; Gish Decl. ¶ 3 & Ex. A). The Post contends it has no record of receiving this letter in March 2010, and the TWPReply@washpost.com e-mail address is a generic address administered by the Post’s parent company, not affiliated with the Post’s news organization or any specific person. (CC Def. ¶¶ 241-42; Morel CSMF ¶¶ 241-42; McLaughlin Decl. ¶¶ 12-13). On roughly May 13, 2010, Hoffman sent a letter to the Post’s Executive Editor Marcus W. Brauchli via Federal Express, demanding Morel’s images be removed; the Post and Brauchli deny receiving this letter, noting that the Federal Express records show it was incorrectly addressed to “Marous Brauchi.” (CC Def. SMF ¶¶ 244; Morel CSMF ¶¶244; Gish Decl. Exs. A & B; McLaughlin Decl. ¶ 14 & Ex. A). The same letter was sent by email to , national@washpost.com and foreign@washpost.com, which are monitored by low-level aides. None of the above letters were sent to the Post’s legal department. (CC Def. SMF ¶¶243, 246; Morel CSMF ¶¶243, 246; McLaughlin Decl. ¶ 12,15).

On June 10, 2010, Michel duCille, a Post employee, was notified by Getty that three photographs in the Post’s online gallery were the subject of a copyright dispute and should be taken down. (CC Def. SMF ¶.247; Morel CSMF ¶ 247). DuCille and a colleague logged into the gallery and took the correct steps to delete the photographs but, for unknown reasons, the photographs continued to appear in the gallery. (CC Def. SMF ¶¶ 248, 259; Morel CSMF ¶¶ 248, 259; Morel SMF ¶ 294; CC Def. CSMF ¶ 294; Ghatti Decl. ¶¶ 4-9 & Ex. A; duCille Decl. ¶¶ 20-21 & Ex. A). On June 17, 2010, Hoffman again set a letter via Federal Express to McDaniel and Brauchli, which this time was routed to James McLaughlin in ■ the Post’s legal department. (CC Def. SMF ¶¶ 249-50; Morel CSMF ¶¶ 249-50; McLaughlin Decl. ¶¶ 16 — 17 & Ex. A). McLaughlin e-mailed Hoffman to acknowledge receipt and ask her to identify the images to be removed, since the June 17 letter did not provide this information and McLaughlin had not seen the previous letters. (CC Def. SMF ¶ 251; . Morel CSMF ¶ 251; McLaughlin Decl. ¶¶ 18-20 & Ex. B; Gish Decl. Ex. A). Hoffman did not respond. (CC Def. SMF ¶ 252; Morel CSMF ¶ 252; McLaughlin Decl. ¶ 22). McLaughlin ■ did, however, confer with the Post’s General Counsel, and was informed that duCille had reported that he removed the images. (CC Def. SMF ¶ 253; Morel CSMF ¶253; McLaughlin Decl. ¶ 21; duCille Decl. ¶ 22).

On April 6, 2011, after Morel’s counsel contacted Getty and AFP and noted that Morel’s images were still on the Post’s website, counsel for Getty informed McLaughlin of this fact. (CC Def. SMF ¶255; Morel CSMF ¶ 255; McLaughlin Decl. ¶ 23). On April 8, 2011, after McLaughlin was sent a link to the Photos-at-Issue by Getty’s counsel confirming they were still visible on the Post’s website, McLaughlin had the images removed from the website. (CC Def. SMF ¶¶ 255-58; Morel CSMF ¶¶ 255-58; McLaughlin Decl. ¶ 23; Ghatti Decl. ¶ 5)

II. DISCUSSION

Summary judgment is proper only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir.2012). In reviewing the evidence on a motion for summary judgment, courts are to construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Id. A fact is material if it might affect the outcome of the suit under the governing law and an issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

Because several of the issues presented for summary judgment turn on questions of intent, a brief word is in order regarding the propriety of summary judgment if a defendant’s state of mind is at issue. As a general matter, although it may be permissible to grant summary judgment when mental state is at issue if there are sufficient undisputed material facts on the record, courts are generally reluctant to do so. Lipton v. Nature Co., 71 F.3d 464, 472 (2d Cir.1995). Issues of intent are questions of fact and, as such, the Second Circuit has explained that summary judgment should be used sparingly. Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 178 (2d Cir.2012). In short, “[Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The court’s role in deciding a motion for summary judgment is to identify factual issues, not to resolve them.” Id. at 174 (quotation marks and citations omitted); see also Koon Chun Hing Kee Soy & Sauce Factory v. Star Mark Mgmt., 2007 WL 74304, at *7-8, *11, *13, 2007 U.S. Dist. LEXIS 1404, at *25-26, *41-42, *46 (E.D.N.Y. Jan. 8, 2007).

A. Direct Liability

Morel moves for summary judgment on his claim of direct copyright infringement. To prove direct infringement, Morel must establish (1) ownership of a valid copyright and (2) that the Counterclaim Defendants infringed any of his exclusive rights granted by 17 U.S.C. § 106. See Arista Records LLC v. Doe, 604 F.3d 110, 117 (2d Cir.2010). Defendants do not dispute that Morel holds a valid copyright in the Photos-aWssue. (Morel SMF ¶ 22-23; CC Def. CSMF ¶ 22-23;CC Def. Opp. at 6).

Morel asserts AFP and Getty engaged in a number of violations of his exclusive rights granted by § 106, including infringement of his exclusive right of reproduction, infringement of his exclusive right of public display, and infringement of his exclusive right to distribute the copyrighted works. (Morel Br. at 19-28). Counterclaim Defendants, although raising affirmative defenses that they claim preclude liability, do not contest that they have engaged in activities with respect to the Photos-at-Issue that — absent their affirmative defenses — would infringe these rights. (AFP Opp. at 6 (“Nor do Defendants dispute for purposes of this motion that they copied, distributed and displayed certain of the Photos at Issue. Specifically, as articulated in their Joint Brief, AFP and Getty Images copied, distributed and displayed the eight Photos at Issue and the Post displayed a subset of those photos.”) (internal citations omitted)).

In light of the above, the dispute between the parties with regard to liability for direct infringement turns on Counterclaim Defendants’ affirmative defenses, namely their claims that (1) by posting the Photos-at-Issue on TwitPic/Twitter, Morel granted them a license, (2) Getty is entitled to the benefit of a DMCA safe-harbor, and (3) Getty has not engaged in volitional conduct sufficient to impose liability. The parties cross-move on these issues, each side contending that they are entitled to judgment in their favor.

1. Third Party Beneficiary/License Defense

The Court begins by considering AFP’s argument that it cannot be held liable because Morel granted it a license by posting the Photos-at-Issue on Twitter. In short, although recognizing that merely posting material on the internet does not vitiate a copyright in those materials (CC Def. Opp. at 7), AFP contends that by posting the Photos-at-Issue on Twitter through Twit-Pic, Morel subjected the Photos-at-Issue to the terms of service governing content posted to those websites, and that these terms of service provided AFP with a license. In response, Morel contests that Twitter or TwitPic’s terms of service granted AFP a license for its conduct, but does not dispute that he accepted Twitter’s terms of service or that, as a general matter, they apply to the Photos-at-Issue. (CC Def. SMF ¶¶80, 82; Morel CSMF ¶¶ 80, 82; Morel Br. at 47-48; Morel Opp. at 25-27; Morel Reply at 12-15).

A license is an affirmative defense to a copyright claim. See Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2d Cir.1995). If only the scope of the license is at issue, the copyright owner bears the burden of proving that the defendant’s copying was unauthorized. Tasini v. New York Times Co., 206 F.3d 161, 171 (2d Cir.1999); Bourne, 68 F.3d at 632. The Court will address the question of whether the Twitter Terms of Service in effect when Morel posted the Photos-at-Issue (“Twitter TOS”) provided AFP .with a license by first reviewing the evidence on which AFP relies, and then considering whether AFP has either demonstrated the existence of such a license or raised a genuine issue of material fact precluding a grant of summary judgment in Morel’s favor.

a. AFP’s evidence

It is undisputed that Morel uploaded the Photos-at-Issue through his TwitPic account. When a user creates an account with TwitPic (Hendon Decl. Ex. 4 at 3, they are directed to a page which states that “[b]y authorizing an application you continue to operate under Twitter’s Terms of Service.” (Hendon Decl. ¶ 6, Ex. 4); see also Dkt. No. 33-3, 33-4, 33-5). The relevant TwitPic TOS themselves also state that “[b]y uploading your photos to TwitPic you give TwitPic permission to use or distribute your photos on Twitpic.com or affiliated sites. All images uploaded are copyright © their respective owners.” (Dkt. No. 33-4).

Because Morel uploaded the Photos-ab-Issue through TwitPic, the Twitter TOS apply to the Photos-ab-Issue. As relevant here, the Twitter TOS provide the following, in a section entitled “Your Rights.”

You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublieense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

Tip[:] This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours — you own your content.

You agree that this license includes the right for Twitter to make such Content available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for such use, it may subject you to liability....

(Hendon Decl. Ex. 2). ' AFP also notes that the Twitter TOS state “Tip[:] What you say on Twitter may be viewed all around the world instantly. You are what you Tweet!” and “We encourage and permit broad re-use of Content.” (Hendon Decl. Ex. 2). From this foundation, AFP argues that it is a third-party beneficiary of the license agreement between Morel and Twitter, claiming in particular that the Twitter TOS intended to confer a benefit (in the form of a license) on Twitter’s “other users.” (CC Def. Br. at 8-12; CC Def. Opp. at 9; CC Def. Reply at 1-2).

AFP also points to Twitter’s Guidelines for Third Party Use of Tweets in Broadcast or Other Offline Media (“Guidelines”) which provide “[w]e welcome and encourage the use of Twitter in broadcast.” (Hen-don Decl. Ex. 5). Counterclaim Defendants do not, however, address the very next sentence of the Guidelines, which discusses “requirements” to “ensure that Twitter users receive attribution for their content,” or the content of these guidelines which include, among other things, a requirement that the username be included with the Tweet and that the full text of the Tweet be used. (Hendon Decl. Ex. 5). Similarly, for displaying images shared on Twitter, the guidelines require that broadcasters “[a]lways display the image and its associated Tweet together; think of the image as part of the Tweet itself’ and “[a]lways include a clear reference to Twitter.” (Hendon Decl. Ex. 5). The Guidelines also have suggestions for broadcasters to “get the most” out of using Tweets in their broadcasts. (Hendon Decl. Ex. 5).

b. The Twitter TOS do not provide a license for AFP’s conduct

The Twitter TOS are governed by California law. (Hendon Decl. Ex. 2). AFP argues that it was a third party beneficiary to the Twitter TOS and derives a license from those terms of service, and is therefore insulated from liability. (CC Def. Mot. at 8-12). The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. Martin v. Bridgeport Cmty. Assoc., Inc., 173 Cal. App.4th 1024, 1034, 93 Cal.Rptr.3d 405 (Cal.App.2d Dist.2009); Prouty v. Gores Tech. Group, 121 Cal.App.4th 1225, 1232, 18 Cal.Rptr.3d 178 (Cal.App.3d Dist.2004). An individual may be a third-party beneficiary to a contract if the terms of the contract “necessarily require” that the promisor conferred a- benefit on that third party. Prouty, 121 Cal.App.4th at 1232, 18 Cal.Rptr.3d 178; see also Oracle Am., Inc. v. Innovative Tech. Distribs. LLC, 2012 WL 4122813, at *19-20, 2012 U.S. Dist. LEXIS 134343, at *55-57 (N.D.Cal. Sept. 18, 2012). The terms of the agreement, however, must “clearly manifest” an intent to benefit the third party. See Martin, 173 Cal.App.4th at 1034, 93 Cal.Rptr.3d 405 (“Reading the agreement as a whole in light of the circumstances under which it was made, the terms of the agreement must clearly manifest an intent to make the obligation inure to the benefit of the third party.”); San Francisco v. Western Air Lines, Inc., 204 Cal.App.2d 105, 120-21, 22 Cal.Rptr. 216 (Cal.App. 1st Dist.1962); see also Green Desert Oil Group v. BP West Coast Prods., 2011 WL 5521005, at *3, 2011 U.S. Dist. LEXIS 131140, at *9 (N.D.Cal. Nov. 14, 2011) (explaining that, although an intended beneficiary need not be specifically identified in the contract, they still must fall within a class “clearly intended” by the parties to benefit from the contract).

The Court need not fix the precise scope of any license created by the Twitter TOS in order to resolve the dispute before it. Rather, it suffices to say that based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case. See Prouty, 121 Cal.App.4th at 1233, 18 Cal. Rptr.3d 178 (explaining, that, while third-party beneficiary status is.often a question of fact, “where, as here,, the issue can be answered by interpreting the contract as a whole and doing so in .light 'of the uncontradicted evidence ... the issue becomes one of law that we resolve independently.”); see also Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc., 171 Cal.App.4th 35, 51, 89 Cal.Rptr.3d 473 (Cal.App. 1st Dist.2009) (“Where the facts are undisputed, the issue is one of law”). Put differently, the evidence does not reflect a clear intent to grant AFP a license to remove the Photos-aL-Issue from Twitter and license them to third parties, nor does it “necessarily require” such a license. See Martin, 173 Cal.App.4th at 1034, 93 Cal.Rptr.3d 405 (holding that the facts pleaded did not clearly manifest an intent to benefit the party claiming third-party beneficiary status); see also Charles Lowe Co. v. Xomox Corp., 1999 WL 1293362, at *7-8, 1999 U.S. Dist. LEXIS 20308, at *23-24 (N.D.Cal. Dec. 23, 1999) (granting summary judgment because nothing in the terms of the contract disclosed an intent to benefit the claimed third-party beneficiary). indeed, this is the fatal flaw in AFP’s argument: it fails to recognize that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.

The import of the Twitter TOS has already been discussed once in this matter in a decision that bears on the Court’s current analysis. Specifically, before this litigation was transferred to the undersigned, Counterclaim Defendants argued on a motion to dismiss before Judgé Pauley that the Twitter TOS granted an express license to use Morel’s images or, alternatively, that they are third party beneficiaries of a license agreement between Twitter and Morel, embodied in the Twitter TOS. Agence Fr. Presse v. Morel, 769 F.Supp.2d 295, 302-03 (S.D.N.Y.2011). Judge Pauley concluded that the express language of the' Twitter and TwitPic TOS did- not provide an-express license that covered AFP. See id. Moreover, with respect'to AFP’s claim of third-party beneficiary status, Judge Pauley found that the Twitter TOS “ ‘necessarily required’ Morel as promisor to confer certain rights of use on two classes — Twitter’s partners and sublicensees” and the Twitter TOS statement that they “encourage and permit broad reuse-of Content” did not, on the pleadings, establish Twitter’s intent to confer a license on “other users.” Id. at 303.

Arguing for third party beneficiary status, AFP advances on this motion many of the same arguments that Judge Pauley has already considered and rejected with regard to the express language of the Twitter TOS. For example, the plain language of the Twitter TOS does not support finding a license covering AFP’s conduct, even as a third-party beneficiary. As Judge Pauley already explained, the Twitter TOS spell out expressly the entities to whom a license is granted, namely Twitter and its partners — and AFP does not contend that it is one of Twitter’s “partners.” Id. Construing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS. Indeed, if Twitter intended to confer such a benefit, it easily could have manifested this intent. Instead, the Twitter TOS specify that the license was granted to Twitter and its partners, that the license “includes the right for Twitter to make ... Content available,” and that additional uses of this content “by Twitter” or its partners may be made without compensation. In short, rather than showing that the benefit AFP claims was “necessarily required,” Oracle Am., 2012 WL 4122813, at *19-20, 2012 U.S. Dist. LEXIS. 134343, at *55-57 by the Twitter TOS, the terms of this contract cut against finding that Twitter intended to confer the benefit of a license on. AFP to sell licenses to the pictures posted on Twitter or TwitPic.

In addition, in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that “[y]ou retain your rights to any Content you submit, post or display” and “what’s yours is yours — you own your content.” These statements would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder. See Zalkind v. Ceradyne, Inc., 194 Cal.App.4th 1010, 1027, 124 Cal.Rptr.3d 105 (Cal.App.4th Dist.2011) (“To the extent practicable, the meaning of a contract must be derived from reading the whole of the contract, with individual provisions interpreted together, in order to give effect to all provisions and to avoid rendering some meaningless.”). Far from “necessarily requiring” the license AFP now claims, the Twitter TOS provides that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.

The reference in the Twitter TOS to use of content by “other users,” and that the license authorizes Twitter to “make your Tweets available to the rest of the world and to let others do the same” are not to the contrary. First, the reference to “other users” occurs in a paragraph of the Twitter TOS addressing the user’s responsibility for the content they post, not the paragraphs discussing the licenses granted under the Twitter TOS. Moreover, even assuming that these statements grant some form of license to third parties (“other users”) to, for example, re-tweet content posted on Twitter — a question not before the Court — they do not suggest an intent to grant a license covering the activities at issue here. . To the contrary, the phrase “other users” suggests that any such license may be limited to use of the material on Twitter; otherwise, the Twitter TOS would simply refer to “others” rather than “other users.” When read in the context of the Twitter TOS as a whole, this phrase is not sufficient to create a genuine dispute as to whether the Twitter TOS necessarily require the license claimed by AFP.

Likewise, as Judge Pauley has already held, “that Twitter ‘encourage[s] and permits] broad re-use of Content’ does not ‘necessarily require’ ” that AFP was granted a license to remove the Photos-at-Issue from Twitter and license them to others. Agence Fr. Presse, 769 F.Supp.2d at 303. This language — which, Judge Pauley explained, is at best ambiguous — cannot overcome the content of the Twitter TOS as a whole, which demonstrates that no such license was intended, let alone “clearly manifest” or “necessarily required.” Oracle Am., 2012 WL 4122813, at *19-20, 2012 U.S. Dist. LEXIS 134343, at *55-57; Martin, 173 Cal.App.4th at 1034, 93 Cal.Rptr.3d 405.

Nor do the Guidelines suggest AFP’s commercial uses are licensed. If anything, the Guidelines further underscore that the Twitter TOS were not intended to confer a benefit on the world-at-large to remove content from Twitter and commercially distribute it: the Guidelines are replete with suggestions that content should not be disassociated from the Tweets in which they occur. In this vein, AFP’s reliance on the statement in the Guidelines that Twitter “welcome[s] and encourage[s] the use of Twitter, in broadcast” is not convincing, as AFP’s removal from Twitter and commercial licensing of the Photos-at-Issue is not akin to the rebroadcast of a Tweet. Thus, even to the extent that the Guidelines could rebut the evidence found in the Twitter TOS, they do not create a dispute precluding summary judgment in Morel’s favor because they cut against finding that the license claimed by AFP is “necessarily required” by the Twitter TOS or was intended by Twitter.

Finally, AFP presents the Court with a false dichotomy, claiming that either its conduct must have been licensed or “the uncountable number of daily ‘re-tweets’ on Twitter and in the media where Twitter/TwitPic posts are copied, reprinted, quoted, and rebroadcast by third parties, all could constitute copyright infringements.” (CC Def. Opp. at 10). However, as the Court has just explained, a license for one use does not equate to a license for all uses. See, e.g., Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (2d Cir.1976); Netbula, LLC v. BindView Dev. Corp., 516 F.Supp.2d 1137, 1150 (N.D.Cal.2007) (explaining that “if ... a license is limited in scope and the licensee acts outside the scope, the- licensor can bring an action for copyright infringement”). Indeed,' Counterclaim Defendants recognize in their briefs that there are many different kinds of license, "stating that “[s]ome terms of service provide creative commons licensees, some provide license with attribution, some provide no license.” (CC Def. Opp. at 7). By the same token, even assuming there may be some license to third parties granted by the Twitter TOS — for example, a license to “re-tweet” content posted on Twitter — this function of Twitter simply does not necessarily require the license urged by. AFP or manifest an intent to grant such an unrestricted license.

The Court concludes that AFP has not demonstrated that it is entitled to summary judgment and, in fact, based on the evidence before the Court, AFP has failed to demonstrate a genuine issue of material fact 'precluding the Court from granting summary judgment in Morel’s favor on AFP’s license defense. See Prouty, 121 Cal.App.4th at 1233, 18 Cal.Rptr.3d 178 (“[Wjhere, as here, the issue can be answered by interpreting the contract as a whole and doing so in light of the uncontradicted evidence ... the issue becomes one of law that [the Court may] resolve independently.”); see also Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir.2012) (explaining that to survive summary judgment, a party must come forward with specific facts demonstrating a genuine issue for trial); San Diego Gas & Elec. Co. v. Canadian Hunter Mktg., 132 F.3d 1303, 1307 (9th Cir.1997) (explaining that summary judgment is permissible even if a contract is ambiguous when the ambiguity, considering all the evidence in the light most favorable the non-movant, could not be resolved in the non-movant’s favor); S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003) (same). In short, considering all of the evidence on •this issue presented to the Court, and drawing all reasonable inferences in AFP’s favor, the Twitter TOS do not “necessarily require” the benefit that AFP now claims.

AFP and the Post raise no other defenses to liability for direct copyright infringement and, in fact, concede that if their license defense fails — as the Court has determined that it does — they are liable for direct copyright infringement. Getty, however, raises further defenses to liability, which the Court now considers.

2. DMCA Safe Harbor

Getty claims that it cannot be liable because it is entitled to the benefit of a safe-harbor under the DMCA, one that covers infringement claims that arise “ ‘by-reason of the storage at the direction of a user material that resides on a system or network controlled or operated by or-for [a] service provider.’ ” Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 27 (2d Cir.2012) (quoting 17 U.S.C. § 512(c)(1)). This safe harbor, among others, was created by Congress through Title II of the DMCA, the “Online Copyright Infringement Liability Limitation Act” (“OCILLA”), to clarify the liability faced by service providers who transmit potentially infringing material over their networks. Id.

In order to qualify for the OCILLA safe harbors, a party must meet a set of threshold criteria. Most importantly for purposes of the present motions, the party seeking the benefit of the safe harbor must be a “service provider,” defined in pertinent part as “a provider of online services or network access, or the operator of facilities therefor.” 17 U.S.C. § 512(k)(1)(B). Courts considering this threshold requirement have generally held that this definir tion is “broad,” with some going so far as to suggest that the definition of service provider is so broad that they “have trouble imagining the existence of an online service that would not fall under the definitions.” In re Aimster Copyright Litig., 252 F.Supp.2d 634, 658 (N.D.Ill.2002); see also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1175 (C.D.Cal.2002) (noting that “[although there appears to be uniform agreement that the definition is broad ... the Court has found no discussion of this definition’s limits”); Wolk v. Kodak Imaging Network, Inc., 840 F.Supp.2d 724, 744 (S.D.N.Y.2012); Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1099-1100 (W.D.Wash.2004); cf. Viacom, 676 F.3d at 39 (explaining that service providers are not limited to those who merely store material, but not expanding upon the limits of this definition).

In the case at bar, however, it appears that notwithstanding the breadth of activities that Courts have held are performed by service providers, the Court may have encountered facts defining the limits of what constitutes a service provider. In order to determine whether there is a material dispúte onp whether Getty qualifies as a service provider, the Court must take a more detailed look at the meaning of this term.

In defining “service provider,” section 512(k)(l)(B) provides that the party seeking to invoke the safe harbor must be “a provider of. online services or network access, or the operator of facilities therefor.” See Louis Vuitton Malletier S.A v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir.2012) (questions of statutory interpretation begin with the text of the statute). Notwithstanding those Courts that have noted the breadth of this definition, Congress must have intended this threshold inquiry to impose some limitation on the availability of the § 512 safe harbors, or it would not have included the “service provider” requirement at all. The question before the Court at this juncture is what it means to provide online “services,” and the limits of the OCILLA safe harbors.

Looking first to the ordinary meaning of “service,” Black’s Law Dictionary contains a number of definitions of “service.” United States v. Gravel, 645 F.3d 549, 551 (2d Cir.2011) (explaining that a fundamental canon of statutory interpretation is that words should be given their ordinary meaning unless otherwise, defined, and consulting dictionaries to ascertain that meaning). For example, “service” is defined as “[t]he act of doing something useful for a person or company, [usually] for a fee”; “[a] person or company whose business it is to do useful things for others”; and “[a]n intangible commodity in the form of human effort, such as labor, skill, or advice.” Black’s Law Dictionary 1491 (9th ed. 2009); see also Merriam-Webster’s Collegiate Dictionary 1137 (11th ed. 2003) (defining service as “useful labor that does not produce a tangible commodity”). As relevant to this case, these definitions would not encompass an entity selling a product or, in particular, licensing a copyrighted work, because that entity would not be “doing something useful for a person or a company” or providing a “commodity ... in the form of human effort.” Indeed, holding that an entity was performing a “service” on such facts would appear to entirely obviate the definition of “service provider” in OCILLA — any individual engaged in any form of business only, including selling a product, could claim to be a “service provider” under OCILLA. Thus, the text of the statute suggests that a “service provider” under OCILLA is an entity that, in broad terms, facilitates, supports, or enables online access or the activities of users of the internet.

Reviewing the substance of the particular OCILLA safe-harbors supports the Court’s analysis that an entity that is directly licensing copyrighted material online is not a “service provider.” See Dole v. United Steelworkers of Am., 494 U.S. 26, 35, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (in interpreting statutes, courts should look to the whole law, and its object and policy). The four safe harbors under OCILLA are for “[tjransitory digital network communications,” in which providers automatically pass material through their system, such as in providing connectivity to a website; “[sjystem caching,” the automatic and temporary storage of material to facilitate access to that material; “[ijnformation residing on systems or networks at [the] direction of users,” such as where a provider supplies server space for the online storage of materials by its users; and “[ijnformation location tools” such as search engines, which refer or link users to material. 17 U.S.C. § 512(a)-(d); see also Recording Indus. Ass’n of Am. v. Univ. of N.C. at Chapel Hill, 367 F.Supp.2d 945, 948-49 (M.D.N.C.2005) (summarizing the OCILLA safe harbors); Melville B. Nimmer & David Nimmer, Nimmer on Copyright §§ 12B.02-12B.05 (2012). Although the meaning of the gatekeeping “service provider” requirement is not necessarily limited to these four categories, these categories provide examples that inform the Court’s inquiry into the meaning of “service provider.” In particular, consistent with the ordinary meaning of “service provider” discussed above, each of these safe harbors is generally directed toward protecting entities that “do something useful” for others with respect to providing or facilitating access to materials online or the activities of internet users, such as providing search engines or connectivity to a website. In contrast, licensing copyrighted material online more closely resembles the mere sale of goods (albeit, in this case, intellectual property) than facilitating users’ activities online.

Indeed, the legislative history of OCILLA confirms that Congress’s focus was “to ensure that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand.” S. Rep. No. 105-190 at 2 (1998). To that end, the OCILLA safe harbors were directed at ensuring that service providers were less likely to “hesitate to make the necessary investment in the expansion of the speed and capacity of the internet.” Id. at 8. For example, in the ordinary course of their operations, online - service providers engage in acts that might expose them to copyright liability, such as making copies in order to transmit materials over the internet, or to host materials on websites, and referring users to websites that may have infringing material. Id. Viewed in this context, the common, ordinary definition of a “service” provider discussed above is sensible, and the safe harbors would not encompass those entities who merely sell or license copyrighted materials.

Finally, every case the Court has reviewed in which a party was a held to be a “service provider” under OCILLA reflects a fact pattern in which the party claiming the benefit of the DMCA safe-harbor was “doing something useful” for other entities or individuals, such as providing a file hosting or file sharing platforms, rather than itself selling or licensing copyrighted material. See Viacom, 676 F.3d at 28; UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 667 F.3d 1022, 1026, 1035 (9th Cir.2011) (“Veoh Networks (Veoh) operates a publicly accessible website that enables users to share videos with other users”); Obodai v. Demand Media, Inc., 2012 WL 2189740, at *4, 2012 U.S. Dist. LEXIS 83109, at *10 (S.D.N.Y. June 12, 2012) (“Because the defendant operates a website that permits users to post and share materials, it falls within the broad definition of a service provider under section 512(k)(1)(B).”); Wolk, 840 F.Supp.2d at 724 (“Because Photobucket offers a site that hosts and allows online sharing of photos and videos at the direction of users, Photobucket, like YouTube.com or Veoh.com, qualifies as a ‘service provider’ ' under § 512(k)(1)(B).”); Capitol Records, Inc. v. MP3tunes, LLC, 821 F.Supp.2d 627, 633-34 (S.D.N.Y.2011); Corbis Corp., 351 F.Supp.2d at 1094, 1099-1100 (explaining that “Amazon operates web sites, provides retail and third party selling services to Internet users, arid maintains computers to govern access to its web sites,” and noting also that “Amazon, however, does not sell any of its own inventory on the zShops platform”); In re Aimster Copyright Litig., 252 F.Supp.2d at 658 (“Aimster is a service provider under the DMCA’s definition in that it provides the routing of digital communication between its users.”); Perfect 10, 213 F.Supp.2d at 1175 (explaining that it may be a “close question” as to whether an age-verification service qualified as a “provider of online services,” but assuming this to be the case); Hendrickson v. eBay, Inc., 165 F.Supp.2d 1082, 1084, 1088 (C.D.Cal.2001) (explaining that there was no dispute that eBay was an internet service provider and that eBay “provides an Internet website service where ... buyers and sellers of consumer goods and services have come together to buy and sell items”). In short, the text of the statute, the ordinary definition of the word “service,” the structure of the OCILLA safe harbors, the legislative history, and the cases applying the safe harbors uniformly suggest that a “service provider” under OCILLA is an entity engaged in facilitating or supporting online access or the activities of users of the internet.

Applying this statutory construction in the present case, the Court has encountered an issue of fact regarding whether Getty qualifies as a service provider. Getty’s argument is, in essence, that it merely provides a file hosting service for AFP’s images — i.e., it provides a system on which AFP’s images are posted and distributed to customers — and thus cannot be held liable for any. infringement of those images that occurred because the images were obtained from its system. However, the record before the Court contains evidence from which a jury could infer that Getty does not, in fact, simply host AFP’s images. In particular, the evidence Morel has presented suggests that the agreement between AFP and Getty grants Getty rights to itself license the images that AFP provides, with a payment of royalties to AFP. (Morel Ex. AA at-1-3, 5-6). Moreover, Morel has submitted evidence that Getty employees were actively involved in the licensing of the Photos-ab-Issue to at least certain charitable organizations, again suggesting that Getty acts not as a passive host or online facilitator of access to AFP’s images, but rather as a licensor of its own rights. (Morel SMF ¶¶ 159, 232-33; CC Def. CSMF ¶¶159, 232-33). On this evidence, a jury could infer that Getty’s role, extends beyond merely providing a file-hosting service to AFP, and that Getty itself acted as a licensor of the Photos-at-Issue. As such, the Court concludes that there is an issue of fact as to whether Getty is, in fact, a service provider under OCILLA.

In addition, the Court denies summary judgment because issues remain as to Getty’s intent and the financial benefit Getty may have received from its licensing of the Photos-at-Issue. The DMCA safe harbor at issue in this matter requires that the party seeking the benefit of the safe harbor (1) lack knowledge or awareness that the material at issue is infringing, lack awareness of facts or circumstances from which infringing activity is apparent, and act expeditiously to remove material known to be infringing upon obtaining such knowledge; and (2) not receive a financial benefit directly attributable to the infringing activity. 17 U.S.C. ’§ 512(c)(1); see also Viacom, 676 F.3d at 36. As discussed in greater detail below with respect to whether Getty may be liable for willful infringement, there is a genuine issue of fact as to whether or not Getty had the requisite intent under § 512(c)(1) to avail itself of the safe harbor. Likewise, as discussed below in considering Morel’s claims for vicarious liability, there remains a genuine issue of fact as to whether Getty received a direct financial benefit from licensing the Photos-at-Issue.

3. Volitional Conduct

For similar reasons, the Court cannot grant summary judgment as to Getty’s liability based on Getty’s argument that it has not engaged in sufficient volitional conduct to be held liable for copyright infringement.

Getty’s position rests, for the most part, on a case with which the Court is intimately familiar: the Second Circuit’s decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 130-133 (2d Cir.2008) (“Cablevision”) and the decisions of courts applying that case. In relevant part, the Second Circuit in Cablevision held that the defendants’ Remote Storage DVR (“RS-DVR”) service did not render them liable for infringement of the plaintiffs’ reproduction rights under 17 U.S.C. § 106(1). Specifically, in Cablevision there were “only two instances of volitional conduct ...: Cablevision’s conduct in designing, housing, and maintaining a system that exists only to produce a copy, and a customer’s conduct in ordering that system to produce a copy of a specific program.” Id. at 131. On these facts, the Second Circuit held that it was the customer who “made” the copies at issue, not the defendants who merely created and maintained the automated system for doing so and, therefore, the defendants could not be directly liable for violating the reproduction right. See id. at 131-34 (“In determining who actually ‘makes’ a copy, a significant difference exists between making a request to a human employee,, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.”); see also Wolk, 840 F.Supp.2d at 741-43 (applying Cablevision and finding no evidence of volitional conduct where -the reproduction was accomplished automatically without intervention by the relevant defendants); Perfect 10, Inc. v. Megaupload Ltd., 2011 WL 3203117, at *3-5, 2011 U.S. Dist. LEXIS 81931, at *9-13 (S.D.Cal. July 26, 2011).

The Second Circuit did not, however, extend its decision in Cablevision beyond the parameters of the reproduction right; rather, Cablevision expressly declined to reach the issue of whether the defendants’ operation of the RS-DYR system involved volitional conduct sufficient to attach liability for the public performance of the copyrighted works. Cablevision, 536 F.3d at 134 (2d Cir.2008) (“[W]e note that our conclusion in Part II that the customer, not Cablevision, ‘does’ the copying does not dictate a parallel conclusion that the customer, and not Cablevision, ‘performs’ the copyrighted work. The definitions that deli