United States District Court, S.D. New York
For Plaintiff: Kenneth L. Doroshow, Amir H. Ali, Jenner & Block LLP, Washington, DC; Alison I. Stein, Jenner & Block LLP, New York, NY.
For Defendant: David Hosp, Mark S. Puzella, Elizabeth E. Brenckman, Sheryl K. Garko, Fish & Richardson P.C., Boston, MA.
OPINION AND ORDER
DENISE COTE, United States District Judge.
This action concerns a copyright dispute between plaintiff Getty Images Inc. (" Getty" ) and defendant Microsoft Corporation (" Microsoft" ). On or about August 22, 2014, Microsoft launched a " beta" or test version of the Bing Image Widget (" Widget" ). The Widget enables web developers to link to Microsoft Bing Image Search results and display those results on their webpages. Getty brought suit on September 4 seeking injunctive relief, and statutory and actual damages. On October 3, Microsoft filed this motion to dismiss Getty's amended complaint (" Amended Complaint" ), filed on September 24. The motion to dismiss is denied for the reasons stated below.
The following facts are asserted in the Amended Complaint and taken from documents integral to the Amended Complaint unless otherwise noted. Getty has attached as exhibits to the Amended Complaint a list of images, copyright registration certificates, and screenshots of the Bing Image Widget website.
Getty is one of the world's largest providers of commercial visual content and the leading provider of commercial images online. Getty generates revenue primarily by licensing the rights to use its content.
Microsoft is a multinational company that develops, produces, licenses, and sells a wide variety of products and services. One of Microsoft's services is the Bing Internet Search Engine which permits users to search for content across the Internet. Like other search engines, Bing uses automated tools to " crawl" the Internet for content. Bing continuously analyzes webpages that it has " crawled" and selects content to be stored and indexed to respond to searches conducted by users of the Bing Search Engine. When the user enters a search term into the Bing search box, Bing's software searches its index for websites responsive to the query and provides the user with a list of results on a results page.
One of the search functions available through the Bing Internet Search Engine is Bing Image Search, which permits users to search specifically for images. In creating the index for the Bing Image Search, Microsoft makes a copy of the indexed image by storing a reduced-size file (" thumbnail" ) on Microsoft's servers in a Thumbnail Library.
On or about August 22, 2014, Microsoft launched a test version of the Widget. The Widget is a tool that can be used by website developers to display Bing Image Search results on their own websites in a display panel bearing the Bing logo. To use the Widget, a website developer goes to the Bing Image Widget website. The developer then makes selections to customize the results, such as the query to run, the number of images to be displayed, and how the results should be displayed. The images are shown in a display panel with the Bing logo across the bottom on the third-party website.
A number of websites around the world, including commercial websites, implemented the Widget following its release in August. Getty is the owner or exclusive licensee of copyrights for the images that are the subject of this action, including the sixty-two works identified in an exhibit to the Amended Complaint. Through the ...