DMCA Safe Harbor Doesn’t Protect Zazzle’s Printing of Physical Items–Greg Young Publishing v. Zazzle
The court summarizes the key facts: “GYPI alleges that Zazzle has publicly displayed 41 paintings by Westmoreland or Erickson on its website, and that Zazzle has created consumer products bearing these images.” GYPI lacked standing to enforce the Westmoreland paintings, but the court says GYPI has sufficient standing to enforce the Erickson paintings.
The case turns to the 512(c) safe harbor:
Zazzle qualifies as a “provider of online services.” The court rejects the AFP v. Morel treatment of this issue: “Morel is an outlier for a reason: its analysis is not persuasive.” Plus, Morel did not deal with a situation where users upload photos, while Zazzle plainly does. The court also distinguishes Gardner v. CafePress because a company can provide online services while having offline interests as well.
Zazzle lacked knowledge of the infringements. Citing Veoh, the court says the “constructive knowledge clause has been construed so narrowly in the Ninth Circuit that it is questionable whether it retains any independent meaning….A service provider will not be found to have knowledge of infringement unless (1) the copyright holder submits a complaint that complies with the DMCA’s procedural requirements (a deficient notice cannot be used to establish knowledge); or (2) a third-party submits a sufficiently specific complaint about potential infringement.” The court cites GYPI’s “complaints” to Zazzle and delivery of a catalog of protected images, but apparently GYPI never sent 512(c)(3) takedown notices to Zazzle. As a result, the court says Zazzle did not have disqualifying knowledge of the infringements.
Zazzle has some right and ability to control infringement. “Zazzle had the right and ability to control the types of products it produced,” in contrast to how eBay/Amazon allow vendors to select which products to sell. This is a non-sequitur because the alleged infringements are attributable to the images selected and uploaded by Zazzle’s users. It’s irrelevant to the alleged infringement what cut of T-shirt is selected by Zazzle and who manufactures the raw materials.
The court acknowledges this non-sequitur by characterizing Zazzle’s response as a non-sequitur:
It doesn’t matter if Zazzle lacked the ability to control its production process after CMT approved the product; presumably CMT had the authority to reject products that were infringing. More to the point, even if the entire process were automatic, that would suggest at most that Zazzle had chosen not to exercise its right and ability to reject infringing products, not that it lacked the right or ability to do so.
To me, it would make more sense to say that Zazzle isn’t functioning as an online service provider for the functions of manufacturing, selling and shipping physical items with infringing images. The court reaches this outcome, but only by distorting the “right and ability to control” factor.
The court continues:
This ruling does not preclude Zazzle from invoking § 512(c) with respect to images that were displayed on its website but never printed onto physical products. It is not clear that Zazzle received a financial benefit from merely displaying images on its website, or that Zazzle had the right or ability to control the types of images its users uploaded.
So Zazzle can qualify for 512(c) for the images displayed in product listings, but not for images printed on physical items–even if they are the same images, and even if Zazzle applies the same screening (or lack of screening) protocols for those images. This court apparently believes Zazzle has (and abdicates) a screening role for its printing function but has no corresponding duty for the product listing. Unfortunately, the court doesn’t explain the assumptions behind this dichotomy.
Case citation: Greg Young Publishing, Inc. v. Zazzle, Inc., 2017 WL 2729584 (C.D. Cal. May 1, 2017)