Second Circuit Judges Brawl Over the Meaning of “Volition” in Copyright Cases–BWP v. Polyvore

This is an appeal of a summary judgment ruling in favor of Polyvore, an image clipping and sharing site, also known as a “mood board” app. (The site itself was acquired and, as the court notes, is now shut down.) BWP asserted direct and secondary infringement claims. BWP conducted minimal discovery. As the court notes, it took no depositions. In response to Polyvore’s motion for summary judgment, BWP made several arguments regarding Polyvore’s extent of copying images, and steps taken in the process. It relied on evidence consisting of a spreadsheet created by BWP’s counsel. The spreadsheet listed images that were reproduced in various sizes (some nine times). In other words, BWP’s counsel testified that he or she observed various images reproduced several times and accessible via Polyvore. However, the images were not the ones at issue in the case. The district court granted summary judgment on all claims. The second circuit reverses in a…

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