Bad Ruling Says CafePress May Not Qualify For DMCA Safe Harbors
from the dangerous-rulings dept
Every time you think something is obvious and "settled" within the law, along comes some random judge to disrupt things. The latest involves CafePress, the very popular service that lots of people use to easily setup print-on-demand offerings for t-shirts, mugs and a variety of other things. At issue in the lawsuit is that a user uploaded someone else's photograph, leading to a lawsuit against the uploader and CafePress. Under the DMCA's safe harbors, CafePress should pretty clearly be protected, but tragically, the judge thinks otherwise. Even though there are tons of cases highlighting how the service provider definition is broadly applied to, well, online service providers, the judge here seems to think that because CafePress sets the prices for the goods sold, that somehow takes away the safe harbors. From the ruling:Here, while CafePress is an e-vendor similar to Amazon, eBay, and Photobucket, CafePress's business varies somewhat from these other entities. The largest difference is that CafePress goes beyond facilitating the sale of products between internet users by directly selling products to online shoppers through the CafePress Marketplace. Indeed, CafePress's policy of determining retail prices for products sold through the Marketplace and paying users only a royalty or commission for the sale of their products highlights the fact that CafePress has gone beyond operating a service that merely facilitates the exchange of information between internet users. As such, the Court cannot say, as a matter of law, that CafePress is a "service provider."But that makes no sense. The company is still, absolutely, a "service provider." As Eric Goldman notes at the link above, in which he says "this opinion is all kinds of crazy:"
Of course CafePress meets the statutory definition of a “service provider” for 512 purposes. It is a “provider of online services.” .... Most fundamentally, the court conflates CafePress’ online and offline activities. I think CafePress clearly qualifies for 512 protection for its online hosting activities..., but 512 doesn’t protect its offline print-on-demand manufacturing and delivery business. Thus, eBay and Amazon are fully protected by 512 for running online ads in their marketplaces. Because they don’t do any 512-disqualifying order fulfillment, they get 512 protection for all of their marketplace operations. CafePress should get identical 512 protection for its marketplace operations. This ruling should panic eBay, Amazon and the many other marketplace operators who think they have 512 protection.Equally troubling may be the fact that the Judge seems to think that basic metadata stripping in photographs may run afoul of a bar on interfering with "standard technical measures" to protect the work. But that raises the question of whether or not stripping basic metadata is really interfering with "standard technical measures." That seems like a pretty big stretching of the definition of "technical measures."
Of course, it's unclear if the case will go much further. The photographer hadn't registered the copyright by the time the photos were uploaded, so there are no statutory damages on the table (and real damages are quite limited). But, there are always folks out there eagerly looking for rulings they can cite that show the weakening of safe harbors. While it's only a district court ruling, I wouldn't be surprised to see it twisted around and showing up in other cases.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, dmca, safe harbors, section 512
Companies: cafepress
Reader Comments
Subscribe: RSS
View by: Time | Thread
Judge Otis Wright might be the best example of that -- not that I'm complaining.
[ link to this | view in chronology ]
You know
[ link to this | view in chronology ]
CafePress sets the retail price?
What they did was set something analogous to the wholesale price -- the minimum price the given item must be sold for to use their system. You, the shop owner, could set any price you wanted that wasn't less than that. You got the entire amount that was above CafePress' minimum (that's why I call it analogous to the wholseale price) -- that's how you make your profit.
[ link to this | view in chronology ]
Re: CafePress sets the retail price?
If someone "finds" the product through your own website or link outside their marketplace search then your price shows & you get to keep the profit.
If the buyer "finds" the product through some sort of marketplace search or if it shows in a search engine search directly to the CafePress site then it is deemed a Marketplace purchase & they have set the pricing & set commission.
So depending on how the buyer gets to the product determines what the price will be. For instance many products can be gotten cheaper if a user gets to the product page on CafePress by going through my website (not active btw) instead of going to CafePress & searching for a product in their Marketplace search.
So really they still have both systems in place.
I equate the separate systems as a:
"the buyer came here because CafePress has a ton of stuff, yours just happened to be chosen" - therefore we set the price & your commission is $0.10
vs
"the buyer came to this product because you drove them to your product" - therefore you set the price & your commission is whatever you set it to be & the buyer could still get it cheaper than if we set the price.
[ link to this | view in chronology ]
Re: CafePress sets the retail price?
[ link to this | view in chronology ]
Good ol reliable masnick, once again, well called !!!!!
[ link to this | view in chronology ]
Re:
Anti-Mike troll just lost THE GAME. (You lost it too)
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
If the product is found through the artist's website or link, the price is whatever the artist wants to sell at. CP gets a certain amount, the artist gets the rest, so the artist is the producer since it's on his/her terms.
[ link to this | view in chronology ]
Re:
The Amazon business model is not simply providing a venue. They become partners with everyone.
[ link to this | view in chronology ]
Re:
No, it doesn't, as explained. Please pay attention.
CafePress is a proactive player in its system. It can't claim it only provides a bulletin board or someplace for users to post, exchange, store files. The CafePress business model is not simply providing a venue. They become partners with everyone. Accordingly, they're jointly responsible and do not deserve the safe harbor protections that'd be afforded them if they just provided the venue.
You ignore pretty much all precedent on the matter, because that's what you like to do.
Furthermore, CafePress has nothing to do with choosing the images or approving the images, so the idea that it has no safe harbors here is clearly bogus.
Seriously: I know you get paid to post copyright maximalist bullshit, but it would be easier to take you seriously if you were at least slightly intellectually honest.
[ link to this | view in chronology ]
Re: Re:
After reading this, I'm sure he'll he'll agree that his ruling is bogus and he's ignored precedent. In fact, I'm certain he will send you a lavish apology and seek your advice on how to properly craft his ruling.
Seriously Masnick, you have a grossly inflated opinion of your command of the law and jurisprudence. The simple fact that you don't like the judge's ruling doesn't mean shit.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
They're no more of a "proactive player" than Amazon or eBay, both of which have been found (repeatedly) to be eligible for safe harbors provisions.
[ link to this | view in chronology ]
Re: Re:
Here, while CafePress is an e-vendor similar to Amazon, eBay, and Photobucket, CafePress's business varies somewhat from these other entities. The largest difference is that CafePress goes beyond facilitating the sale of products between internet users by directly selling products to online shoppers through the CafePress Marketplace. Indeed, CafePress's policy of determining retail prices for products sold through the Marketplace and paying users only a royalty or commission for the sale of their products highlights the fact that CafePress has gone beyond operating a service that merely facilitates the exchange of information between internet users. As such, the Court cannot say, as a matter of law, that CafePress is a "service provider."
[ link to this | view in chronology ]
Re: Re: Re:
Just because I disagree with the judge's stupid opinion does not make me stupid. Also, we'll see what happens on appeal. I predict that this particular part of the ruling will be overturned.
The largest difference is that CafePress goes beyond facilitating the sale of products between internet users by directly selling products to online shoppers through the CafePress Marketplace.
The judge doesn't seem to realize that Amazon and eBay do almost exactly the same thing. Amazon, for instance, directly sells third-party products to online shoppers, using Amazon's own shipping apparatus. eBay does something similar with their eBay Store service. Yet the court rulings that the judge cites in his opinion do not strip DMCA protections from either Amazon or eBay for these reasons.
Please note that I am disagreeing with the judge about whether Cafe Press is eligible for DMCA safe harbors. Whether they actually meet that eligibility is a separate question. And, of course, lack of DMCA safe harbors eligibility does not mean that Cafe Press is necessarily liable for infringement.
[ link to this | view in chronology ]
Re: Re:CafePress is a proactive player in its system.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Cafe Press filed a motion for Summary Judgment, arguing that there are no disputed issues of material fact that the court must determine before issuing judgment in favor of Cafe Press. On these motions, the burden is extremely high on the party making the motion, and extremely low on the side opposing the motion. While Cafe Press had to present enough undisputed evidence to win the case, all the other party had to do was provide any evidence whatsoever (no matter how small) that would show there is a material issue that still needs to be determined by the court before declaring a winner. In making this determination, the court does not weigh the strength of the evidence.
In this case it appears that there is a material dispute as to whether Cafe Press acts as more than a service provider covered by the safe harbor provision. If Cafe Press loses the case, then there may be cause to worry. Until then, not so much. All the judge did was rule that an issue exists to be decided by the court.
[ link to this | view in chronology ]
Cafe Press - biggest COPYRIGHT breaking scam ever!
[ link to this | view in chronology ]
Same boat
[ link to this | view in chronology ]