Court Realizes It Totally Screwed Up An Injunction Against Zazzle For Copyright Infringement
from the oops dept
Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.
However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.
In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.
The Court finds that there is a “manifest showing” of the Court’s “failure to consider material facts presented to the Court” because the Court did not provide any justification for the permanent injunction.
Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.
For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.
In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:
Plaintiff’s proposed permanent injunction was ambiguous and went beyond the issues at trial, facts which the Court did not consider when it granted the initial motion for a permanent injunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense as to images only displayed on Zazzle’s website and never physically manufactured. Dkt. 81. Plaintiff withdrew its claims as to such “display-only” artworks prior to trial, so the issue was not tried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both the manufacture and distribution of physical goods, or also to display of images on the Zazzle website. It is also unclear if Zazzle must take “reasonable” steps to address the display of images on its website as well as its manufacture of products. The Court did not consider these material facts in determining the scope of the permanent injunction; upon reviewing these facts, the proposed injunctions go beyond the issues at trial.
It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.
But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:
The Court recognizes that it failed to consider material facts in granting the permanent injunction in October 2017. The Court also recognizes that it provided no rationale for the permanent injunction, manifestly showing the failure to consider such facts. Upon considering those facts, the Court finds no basis for a permanent injunction in this matter.
Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.
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Filed Under: copyright, dmca, injunction, mea culpa
Companies: zazzle
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Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?
Admitting that you left out key parts and portents is first step to YOUR correcting the record!
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Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?
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Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?
Second, from the post:
" Wilson released a new order reversing his earlier order " , which is talking about the vacated injunction.
https://digitalcommons.law.scu.edu/historical/1600/
Just for fun, here's a link to not one, but four documents related to the case. (Verdict, request for attorney fees, injunction, and damages reduction)
Techdirt isn't a complete legal history of everything, so just calm down. If you didn't come out of the gate like a double barreled lunatic, we could start a constructive conversation about the events (including a jury trial) between the motion for summary judgement in the first Techdirt aticle and this one. We could ponder how in the world Zazzle ended up with a damages judgement of $350,000 when GYPI acknowledged in court that Zazzle complied readily with every takedown request provided. We could even discuss the philosophical difference between an automatically displayed pixel, an automatically printed pixel, and an automatically 3D printed squirt of plastic in a "Digital Millennium"
Instead, you sound like a tool that's genuinely upset that he had to read and even think a little.
Good day, sir.
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Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?
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Your shouts are fun!
Whatever it is you're mumbling about.
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Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?
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"By printing an image on a physical good the DMCA protections disappear." -- I think that's still a true statement. Nothing you raised even disputes it.
Now, if you'll just go back as the judge did and show your REASONING on the key finding, not just leap to assert that DMCA covers even physical goods, it'd be handy. 'Cause you state that the key finding is still in place, and so not much can change.
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Re: "By printing an image on a physical good the DMCA protections disappear." -- I think that's still a true statement. Nothing you raised even disputes it.
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Re: "By printing an image on a physical good the DMCA protections disappear." -- I think that's still a true statement. Nothing you raised even disputes it.
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Re:
…you actually read things?
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Credit where it's due
Admitting that you screwed up is hard.
Admitting that you as a judge screwed up takes that up a few levels of difficulty.
As such he's to be commended for not only realizing but publicly admitting that he got this wrong, even if he could have gone a bit farther.
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I really don't see why that's wrong. I can see a good argument for changing the law, but right now the DMCA applies to "transitory digital network communications", "system caching", "information residing on systems or networks at direction of users", and "information location tools". It does *not* apply to physical objects like t-shirts. If there's a double standard, it's baked into the law.
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perhaps instead of thinking, as 99.9% of judges do, that whatever they think/say is right that knowing and complying with the law is a better way to go? what about the damage that's been done to Zazzle? will that be undone by this judges incompetence? and what about amending the 'Safe Harbor' part? totally ignored, still!!
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My experience with Zazzle
After TEN YEARS, I received an email from Zazzle stating they had removed the photo because of violation of Terms Of Service agreement.
Puzzled, I responded with a query as to the specifics as to the so-called violation. The response was it related to a complaint from a (named) person working at Leica complaining that I had used the word Leica in describing my phtoto without their permission.
This was on so many levels that in disgust I removed all my images from their site, and also vowed I would never buy another Leica,product.
I cannot abide idiotic nonsense dressed up in legal trappings.
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