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The Mockingbird Foundation v. Luong

On behalf of a California photographer, a California law firm known for aggressive enforcement of copyright claims sent demand letters to The Mockingbird Foundation, a non-profit formed by fans of the band Phish to promote music education for children. The letters complained that a user of a discussion forum on the website had posted a deeplink to a photograph on the photographer’s online studio gallery, thus enabling other forum users to see the photo without the payment of a license fee. The letters demanded the payment of $2,500 in statutory damages. After receiving repeated threats of litigation, Mockingbird sued the photographer in the United States District Court for the Northern District of California, seeking a declaration of non-infringement on the twin grounds that deeplinking is not infringement and, in any event, that the host of an online discussion site is not liable for infringements by discussion site users where the host neither engaged in any volitional act that caused the infringement nor derived a direct financial benefit from the infringement.  The photographer told Mockingbird that he would not sue it for the specific deeplink over which he had previously threatened it, and moved to dismiss his complaint on mootness grounds.  Mockingbird opposed that dismissal, because the photographer could too easily sue it over the deeplinking of others of his photographs. In March 2020, the district court denied the defendant’s motion to dismiss; the photographer then gave Mockingbird a broad, irrevocable license for deeplinking of all of his photographs, thus ensuring that he could not sue Mockingbird in the future on infringement grounds based on linking on the forum.  The case was then dismissed.