DMCA 512(c) Helps Redbubble Defeats Copyright Lawsuit–Wallshoppe v. Redbubble

Wallshoppe makes wallpaper with copyrighted designs, such as the “Pacifico Palm Design” depicted to the right. It has a copyright registration in the design.

Wallshoppe found Redbubble merchants selling the design. However, for unspecified reasons, Wallshoppe didn’t submit proper DMCA takedown notices. On October 19, 2021, Wallshoppe submitted a DMCA notice for a seller that identified one listing by URL and said the same seller had 28+ other infringing listings but didn’t identify those URLs. On October 20, Wallshoppe submitted another DMCA notice that identified 2 URLs and said the seller had 64 other infringing items, also without specifying those URLs. Redbubble removed the 3 specifically identified URLs and ignored the rest; though after Wallshoppe sued, Redbubble implemented “proactive screening” for Wallshoppe (I’m not sure what this involves, and I didn’t see any explanations of this program on Redbubble’s site from a few quick searches).

Why didn’t Wallshoppe submit URLs for the 28 and 64 other items it had seen through its research? 🤷‍♂️ If it got to the point where it could precisely count the number of infringing items, copying and pasting over the URL seems like a trivial step (and a lot easier than federal litigation…).

Wallshoppe sued Redbubble for copyright infringement due to its merchants’ listings. Redbubble successfully defends using the DMCA 512(c) safe harbor.

Storage at User’s Direction. Wallshoppe argued that Redbubble doesn’t qualify for the DMCA safe harbor because it has a team of content moderators (internal plus a BPO) and proactively screens content.

The court credits Redbubble’s testimony that it didn’t prescreen for Wallshoppe’s content here during the relevant time period, so Redbubble didn’t “approve” the infringing listings. The court distinguishes the Mavrix v. LiveJournal case because “unlike the content moderators in Mavrix, Redbubble’s content moderators manually screen only a small fraction of user-submitted material to suss out potential infringement….Assuming the product is not flagged for manual review, the product is then automatically displayed for sale on Redbubble’s website.”

Knowledge/Expeditious Takedown. Wallshoppe tries to spin its imprecise DMCA notices into red flags of infringement, even though this argument was expressly foreclosed in the UMG v. Veoh ruling over a decade ago.  🤷‍♂️

When Redbubble is informed of infringing material, it is obligated to take the material down. But it is not obligated to “investigate” to find more potentially infringing material…Redbubble fulfilled its obligations to remove material where it had actual knowledge of infringement.

Right/Ability to Control. Citing the Sid Avery v. Pixels ruling, the court says:

Redbubble has shown that contributors alone upload and manipulate the content to be offered for sale on the website. When an order is placed, Redbubble’s software “automatically performs various online services to facilitate the transactions that occur,” including “connect[ing] third-party Sellers to third-party printers who print the products,” and “automatically rout[ing] purchase order and shipping information to third-party printers,” who then print and pack the products without the involvement of Redbubble personnel, These facts establish that Redbubble “controls its operations as a service provider, not the infringing activity.”

Wallshoppe has already appealed this ruling to the Ninth Circuit.

Case citation: Wallster, Inc. v. Redbubble, Inc., 2024 WL 3313746 (C.D. Cal. May 31, 2024)

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