The parties in Getty Images v. Stability AI have answered the questions sent by Judge Trina Thompson ahead of the hearing on the partial motion to dismiss filed by Stability AI. The hearing is on 4/7/2026 at 2:00 PM in San Francisco, Courtroom 09.
Question 1:
My comment: Courts have in fact referred to “double scienter” standards for both 1202(a) and 1202(b), which may be a source of confusion.
For 1202(a), double scienter means that “a plaintiff must plausibly allege double scienter, in that the ‘defendant knowingly provided false copyright information and that the defendant did so with the intent to induce, enable, facilitate, or conceal an infringement.’ Regisford v. Lockamy, No. 23 CIV. 5928 (AKH), 2025 WL 2444191, at *3 (S.D.N.Y. Aug. 25, 2025), reconsideration denied, No. 23 CIV. 5928 (AKH), 2025 WL 2780123 (S.D.N.Y. Sept. 30, 2025).
For 1202(b), double scienter means: “Section 1202(b)(3) contains a so-called ‘double-scienter’ requirement: the defendant who distributed improperly attributed copyrighted material must have actual knowledge that CMI ‘has been removed or altered without authority of the copyright owner or the law,’ as well as actual or constructive knowledge that such distribution ‘will induce, enable, facilitate, or conceal an infringement.’” Mango v. BuzzFeed, Inc., 970 F.3d 167, 171 (2d Cir. 2020).
As Judge Thompson indicates in her question, the scienter requirement may be different in (a) and (b). The second scienter in (b) allows for constructive knowledge (“knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title”), whereas (a) requires actual knowledge (“No person shall knowingly and with the intent to induce…”).
Question 2:
Editor’s note: The case referred to is Dastar.
Getty Images Answers:
Stability AI answers:
The questions are:
DOWNLOAD THE QUESTION
