Judge Sorokin denied Her Campus Media 2019s motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. Getty asserts that Her Campus Media has republished without authorization hundreds of Getty-owned photographs, and continued to do so after Getty notified Her Campus Media of their infringements. Her Campus Media asserted that it was entitled to the safe harbor provision of the Digital Millennium Copyright Act, and that its use of Getty-owned photographs constituted fair use under the copyright laws. Judge Sorokin denied dismissal because Getty, in its complaint, did not admit to all of the components of the safe harbor defense that would permit dismissal on the pleadings, and because the facts as alleged in the complaint were insufficient to analyze the fair use issue. Her Campus Media submitted affidavits in support of summary judgment, but failed to include a statement of material facts as required by Local Rule 56.1, which alone is sufficient to deny the motion. Judge Sorokin further noted, however, that much of the information necessary to evaluate the affirmative defenses on which the motion was based (for example, the relationship between Her Campus Media and its student contributors) was entirely within the control of Her Campus Media but were either absent from the record or disputed by the parties and would require. He therefore denied summary judgment as premature.
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