Rounding Up Some Recent Copyright Decisions

April 12, 2025 · by · in Copyright, Derivative Liability, E-Commerce, Trademark

A few recent copyright cases worthy of blog coverage, but not worthy of a standalone post.

Omnia Studios Ltd. v. JD E-Commerce America Ltd., 2025 WL 961473 (W.D.N.Y. March 31, 2025)

This case involves the service Joybuy, which listed items for sale in Walmart.com’s marketplace. The plaintiff alleges that Joybuy sold counterfeit items, as confirmed by test buys. The court is unclear about how Joybuy operates, but it appears that Joybuy (via the entity “JD”) runs its own online marketplace. As a result, the Joybuy listings on Walmart.com are actually third-party merchant listings with Joybuy syndicated to Walmart.

This ruling deals with the 512(c) defense. The plaintiff argued that Joybuy/JD did not qualify as a “service provider” because it was the direct merchant. This is a rare attack on the capacious definition of a service provider, and it did not succeed. The court says that Joybuy sufficiently established that it ran its own online marketplace and thus qualified as a service provider. Shockingly, the plaintiff didn’t contest any of the other 512 elements, so Joybuy defeats the lawsuit.

The plaintiff argued that Walmart received direct financial benefits from the listings, so it is disqualified from the 512(c) defense. Rather than address that argument, the court does a switcheroo and says that Walmart doesn’t have the right and ability to control the infringements. This switcheroo doesn’t answer the question on the table, because the 512(c) defense requires the defendant to BOTH not have the requisite supervisory ability AND not have a direct financial interest in the infringements. Showing that Walmart satisfied one 512(c) defense element doesn’t have any bearing on a different defense element.

Still ignoring the question on the table, the court explains why Walmart lacked the requisite supervisory ability:

Wal-Mart exercised little influence over the activities of its users. As the operator of the marketplace, Wal-Mart allowed users to take the lead on creating listings and thereby selling products—including infringing ones. Wal-Mart’s ability to remove infringing content does not grant it the right and ability to control, nor does its role in screening content as it was listed.

The plaintiff also argued that Walmart had red flags of infringement because it was willfully blind. The court says that even if that’s true, Walmart expeditiously removed the infringing items, typically “within a day of receiving the complaint.” The court gives Walmart some grace over the exceptions:

Plaintiffs point to only a small number of listings that remained active for longer periods of time, but this seems to speak more to the technical difficulties involved in curating an online marketplace than a sign of willful blindness. As reported by Snukset, these lapses are attributable to glitches within Wal-Mart’s automated takedown system—Plaintiffs have not submitted evidence that satisfactorily disputes this.

The plaintiffs also challenged Walmart’s implementation of its repeat infringer policy because it didn’t terminate JD. The court accepts Walmart’s explanation:

Snukset explains at length why Wal-Mart did not terminate JD or its marketplaces from Walmart.com: because Wal-Mart knew that JD was “not the actual source” of the infringing products and did not create the listings themselves, that JD had a relatively low number of infringement complaints relative to market volume, and a “lack of evidence of prior notice of Plaintiff’s IP rights.” All of these constitute appropriate reasons why an ISP would refrain from terminating a user.

Another act of grace from the court. Having a low number of infringement complaints still would sound like a recidivist to most courts.

All told, Walmart gets summary judgment on the DMCA online safe harbor defense. I can’t tell why the plaintiff’s narrative fell so flat before this judge, but I don’t know how repeatable this ruling is.

The contributory trademark infringement claim against Walmart goes the same. “The evidence shows that Defendants were on-notice that their marketplaces contained infringing listings—Plaintiff and their agents issued infringement complaints on dozens of such listings. In response to these complaints, however, the evidence shows that Defendants promptly took down nearly all of the infringing listings.” As Miracle Max would say, “There’s a big difference between mostly removed and all removed,” but this court treats them as equivalent.

In a footnote, the court says: “Wal-Mart points out that Plaintiffs assert “relatively small levels of infringing sales—Chinn ($311.40), Collis ($2,195.28), Omnia ($170.01) and Turkey ($153.66).” Plaintiffs dispute whether these constitute “relatively small levels.”” Say what? This case involved less than $3k of total gross sales??? That seems like dubious grounds to go after a giant business like Walmart.

After II Movie, LLC v. WideOpenWest Finance LLC, No. 1:21-cv-01901-DDD-CYC (D. Colo. March 14, 2025)

This is a lawsuit against an IAP for subscriber-caused copyright infringement. The contributory copyright infringement claim survives a motion to dismiss when the plaintiffs allege “that WideOpenWest was notified of over 33,750 specific instances of direct infringement at over 13,000 of its IP addresses, including approximately 100 instances of specific infringements at several IP addresses, yet it did not investigate further or take any action to stop continued infringement by the subscriber accounts associated with those IP addresses.” The IAP argued that Taamneh changed contributory copyright infringement, but that argument was rejected in UMG v. Grande (see also In re Frontier).

With respect to the vicarious copyright infringement claim, the court credits the following allegations:

at least one subscriber continued using WideOpenWest’s internet service because WideOpenWest is “amazing on torrents” and the subscriber had “never gotten a letter or notice” despite having “downloaded truly an outrageous amount of data.” That subscriber recommended WideOpenWest to someone else looking for an internet service provider that is “‘less’ strict on downloading.”

(Note that nothing in that subscriber’s testimonial refers to copyright infringement. The subscriber could have been celebrating their massive bandwidth consumption, not their massive infringement spree).

As a result, the court accepted the inference that “copyright infringement was a draw for WideOpenWest’s customers, and that WideOpenWest reaped some financial benefit, via attraction or retention of accounts, directly from its users’ downloading and distribution of the plaintiffs’ copyrighted works.”

As I’ve mentioned many times before, treating IAPs as the deputy copyright sherriffs is bad news for the Internet. For more, see the linkwrap below.

Maddry v. Luoxue, 2025 WL 822692 (N.D. Cal. March 14, 2025)

The copyrighted work at issue in this case is a card game called “Discernment,” which contains a deck of “made up of cards with biblical or funny Christian phrases” that are garbled and need to be decoded. The copyright owner allgedly got flooded with Chinese knockoffs in online marketplaces that undercut his price. He complained to Amazon, which temporarily suspended the listings. Amazon said the listings would be restored unless he sued the knockoff merchants. He sued the online marketplaces pro se and sought an ex parte TRO for various remedies. His requests are all denied.

The court says that it cannot bind the online marketplaces because they aren’t defendants and thus are not reachable via FRCP 65. This goes straight to the heart of the SAD Scheme, where rightsowners keep getting TROs that purport to bind the online marketplaces–seemingly lawlessly.

The court says that 512(c)(3) takedown notices are supposed to provide the quick relief he seeks, and the court can’t tell if he has availed himself of that procedure. This is a bit unfair to the plaintiff. 512(c)(3) is a way of disqualifying a defendant from the DMCA online safe harbor, but it’s not mandatory that copyright owners send takedown notices to succeed in court. However, as a practical matter, courts have been skeptical when copyright owners sue intermediaries without trying 512(c)(3) notices first, and that appears to be the case again here.

The court also says the plaintiff can discover the identity of the merchants through 512(h) subpoenas, so an ex parte TRO is unnecessary. That’s true, but what about disclosures mandated in the INFORM Consumers Act?

The court denies the plaintiff’s request to enjoin the merchants from making listings because the complaint doesn’t provide evidence of copyright registrations. An always-embarrassing mistake, even for a copyright owner proceeding pro se.

Lopez v. Meta Platforms, Inc., 2025 WL 965811 (S.D.N.Y. March 31, 2025)

Lopez claims copyright and trademark ownership of the “NYC New York Cannabis” logo:

Lopez claims Meta and its users used the logo to promote the “NYC Canna Cruise.”

The problem is that Lopez doesn’t have a copyright registration in the logo because the Copyright Office refused it under its standard policy against registering logos. The unjust enrichment claim fails because it’s preempted by the Copyright Act. The court doesn’t give Lopez another chance to amend in part because “Lopez is a serial IP litigant who has filed at least 41 lawsuits in this District against more than 100 different defendants.”

Selected Posts About IAP Copyright Liability