CreateSpace Isn’t Liable for Publishing Allegedly Infringing Uploaded Book–King v. Amazon

King wrote a book, From Brooklyn to the Grave. King asked his ex-girlfriend, Thomas, to help edit and publish the book. Thomas published the book via Amazon’s CreateSpace. King claims that Thomas expropriated the manuscript and thus Amazon never had his permission to publish the book. The court dismissed his copyright infringement claims.

Direct Infringement. The court says: “because CreateSpace is an automated service that allows authors and their authorized agents to publish and distribute their work, Plaintiff cannot succeed as a matter of law on a claim for direct infringement. Amazon provided an automated service and took no part in the content of the work. CreateSpace merely served as a conduit for authors and independent publishers to self-publish digital and print-on-demand books.”

In the offline world, printers normally cannot defend against copyright infringement by saying they merely printed infringing works. (There is an “innocent printer” defense in trademark law, but it’s rarely successful). Standard copyright doctrine says that if an offline printer makes a copy of an infringing work, it is strictly liable. In this case, it’s unclear if Thomas published King’s book only as an ebook. If not, the court extends the “volitional” doctrine to offline activity–a novel outcome. This reasoning could then apply to other print-on-demand publishers, such as the Greg Young v. Zazzle case that reached a very different outcome. I don’t expect it will.

Non-experts in Internet Law routinely think the phrase “mere conduit” provides a potent defense, but those magic words rarely work in court–in part because few laws recognize any such defense, and in part because few defendants act only as “mere conduits” and do nothing more. Surprisingly, the defense works here! The court might have bolstered its conclusion by citing the photocopier analogy from Cablevision (i.e., Thomas and other CreateSpace posters are the ones who “push the button”). However, Amazon does far more to copy and distribute King’s work than the photocopier shop owner in Cablevision. Thus, characterizing Amazon as a “mere conduit” seems dubious. In a FN, the court says “Amazon states the only review of any of the content is a check for pornographic or other offensive images before a self-published book is listed on their website.” My experience has been different. Amazon reviewers routinely hold up my ebook manuscripts for containing third-party material of unknown (to them) copyright provenance.

Contributory Infringement. (Note: the court’s articulation of the legal standards for contributory and vicarious infringement is fouled up). Doing a distorted Sony analysis (despite Grokster’s undermining of Sony), the court says:

Plaintiff cannot show that CreateSpace was incapable of a substantial non-infringing use. Through CreateSpace, millions of self-published books that did not infringe copyrights were published. In fact, Amazon designed CreateSpace with steps intended to prevent copyright infringement. Amazon required all users to agree to the “CreateSpace Member Agreement,” which required that the author or publisher expressly represent that they obtained all rights necessary to distribute the work and that the work does not infringe on any intellectual property rights of others.

A standard plaintiff retort would invoke Judge Learned Hand: “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.”

King did send a takedown notice, of sorts, but it didn’t comply with the 512(c)(3) requirements.

Inducement. “Amazon played a passive role in the publication of Plaintiff’s book. Simply providing a self-publishing service, especially one that requires users confirm they are not infringing anyone’s intellectual property rights before providing the service, does not translate to Amazon intentionally inducing or encouraging Thomas to infringe on Plaintiff’s copyright.”

Vicarious Infringement. “Plaintiff cannot show that Amazon has the practical ability to supervise the millions of authors and independent publishers who utilize its self-publishing services.” This would be a helpful legal standard if adopted by other courts, but it won’t be.

King effectively no-showed for this motion, so the court’s analysis is a little loose. Still, this is a nice win for CreateSpace and possibly provides helpful language for other print-on-demand publishers.

Case citation: King v. Amazon Corp., 2019 WL 6404882 (W.D.N.C. Nov. 27, 2019)

For a similar case in the defamation context, see Sandler v. Calcagni.