The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein

As you know, DMCA takedown notices and 512(f) can be, and regularly are, used as anti-competition tools. This time, the pugilists are fast-fashion marketplaces Shein and Temu. I imagine some of you want both of them to lose. Given that they are litigating 512(f), your wish was partially granted.

Temu entered the US market in September 2022. It says it quickly attracted 170 DMCA notices a day, 63% from Shein–a total of 33k notices by the end of 2023. Temu complained that Shein’s takedown notices were unnecessarily hard to process, such as “unsearchable PDFs with unclickable and sometimes incorrect links” that were “sent in large batches.”

Temu sought an injunction, based on 512(f), requiring Shein to adhere to more rigorous practices when sending takedown notices. The court refuses Temu’s preliminary injunction request.

Temu claimed that Shein’s allegedly bogus takedown notices harmed Temu’s reputation. However, the affected users apparently blame Shein, not Temu, for the disruption.

Temu also claimed that it wasn’t getting as many new merchant signups due to Shein’s takedown notice barrage, but the court says there’s no evidence that Shein’s takedown notices are driving away existing merchants:

Temu has not shown that so many of its sellers would leave the platform—or other sellers would be dissuaded from advertising their products there in the first place—so as to meaningfully threaten Temu’s ability to compete in the ultra-fast-fashion market such that the existence of that segment of its business is threatened

In a footnote, the court adds: “Temu’s complaint that it devotes thousands of hours to responding to Shein’s DMCA takedown notices does not constitute irreparable harm.”

Thus, the court concludes:

Temu has not shown that any harm it may suffer is certain, great, actual and not theoretical, and cannot be later remediated with money damages, for which the DMCA expressly provides

Money damages sound like an appropriate solution in theory, but what are the odds that Temu won’t get a dime in 512(f) damages?

There are several plausible explanations for Shein’s behavior, but Temu’s allegations could be consistent with Shein using the DMCA takedown notice process to burden Temu and strategically knock out sellers from Temu’s marketplace. If that’s what’s happening, odds are high that Shein will get away with it. This kind of behavior wasn’t on the minds of the DMCA drafters, who didn’t contemplate how their doctrinal tools would be used by marketplace giants tweaking each other by any means necessary. Because of this, takedown notices and 512(f) are misdesigned to avoid competitive misuse.

This case indirectly parallels the SAD Scheme cases, where rightsowners bombard marketplaces with illegitimately obtained ex parte TROs that the marketplaces must process at significant cost to them, as well as suffer the loss of legitimate merchant offerings and the degradation of the customer experience. This opinion suggests this judge would have zero interest in enjoining rightsowners from this practice.

Case Citation: Whaleco Inc. v. Shein Technology LLC, 2025 WL 445187 (D.C.D.C. Feb. 9, 2025)

Prior Posts on Section 512(f)

* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment