Court Ruling Highlights DMCA Safe Harbor Limits

Second Circuit vacates summary judgment, remands copyright case for further review of platform's content control

Published on Feb. 26, 2026

Got story updates? Submit your updates here. ›

The US Court of Appeals for the Second Circuit affirmed dismissal of a photographer's Digital Millennium Copyright Act (DMCA) claims against a digital media platform for lack of scienter, but vacated summary judgment on copyright claims. The court remanded the case to the district court to assess whether the platform can claim protection under the DMCA's service provider safe harbor, based on the platform's degree of control over user-uploaded content.

Why it matters

This ruling underscores the importance of online platforms maintaining appropriate levels of content moderation and control to qualify for DMCA safe harbor protections. The court's guidance on assessing a platform's 'substantive and discretionary control' over user submissions, as well as its 'right and ability to control' alleged infringing activity, provides a framework for evaluating the boundaries of safe harbor eligibility.

The details

Photographer Elliott McGucken sued digital media platform Shutterstock for copyright infringement after hundreds of his copyrighted photos were uploaded by third-party user accounts. Shutterstock removed the images within four days of receiving takedown notices and terminated the uploading accounts. However, McGucken alleged copyright infringement and false copyright management information (CMI) under the DMCA. The district court granted summary judgment for Shutterstock on all claims, but the Second Circuit affirmed dismissal of the DMCA CMI claim while vacating summary judgment on the copyright claim.

  • The Second Circuit issued its ruling on February 10, 2026.

The players

Elliott McGucken

A professional photographer who discovered several hundred of his copyrighted photographs were uploaded to Shutterstock without authorization.

Shutterstock

A digital media platform that allows users to upload and license images, videos, and other content.

Got photos? Submit your photos here. ›

What they’re saying

“The factfinder must determine whether Shutterstock's review of uploaded material involved 'substantive and discretionary control' over what appears on the platform, including the level of aesthetic or editorial judgment applied when deciding which images to accept.”

— Second Circuit Court, Judges (National Law Review)

“Safe harbor is unavailable where the provider exercises 'substantial control' over users' activities, such that decisions about what content is allowed on the site go beyond promoting or demoting material.”

— Second Circuit Court, Judges (National Law Review)

What’s next

The case will now return to the district court for further proceedings to determine whether Shutterstock can claim protection under the DMCA's service provider safe harbor based on the platform's level of control over user-uploaded content.

The takeaway

This ruling highlights the nuanced legal landscape around DMCA safe harbor protections, emphasizing that online platforms must carefully balance content moderation practices to avoid crossing the line into exercising too much 'substantive and discretionary control' over user submissions, which could jeopardize their safe harbor eligibility.