Court Says DMCA Safe Harbors Disappear Once Infringing Images Are Printed On Physical Items
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A really weird decision with some implications for DMCA safe harbors has come out of a US district court in California. The case revolves around paintings and pictures licensed by Greg Young Publishing International [GYPI], several of which appeared on Zazzle's website and, consequently, were turned into physical reproductions (mugs, t-shirts, etc.) via Zazzle's automated print-on-demand process.After some discussion about which prints GYPI actually controls for infringement claim purposes, the court gets down to addressing the supposed infringement. Discussing the safe harbor provisions, the court finds Zazzle qualifies for these protections. Sort of. The court says Zazzle qualifies as a provider of online services and, thanks to GYPI never sending any DMCA notices, it had no knowledge of the infringement.That's where the court's reasoning starts swimming in non-concentric circles. As Eric Goldman points out, the court's legal math doesn't add up when it decides there's something Zazzle could have done to prevent the alleged infringement. Goldman comments on the court's strange determination:“Zazzle had the right and ability to control the types of products it produced,” in contrast to how eBay/Amazon allow vendors to select which products to sell. This is a non-sequitur because the alleged infringements are attributable to the images selected and uploaded by Zazzle’s users. It’s irrelevant to the alleged infringement what cut of T-shirt is selected by Zazzle and who manufactures the raw materials. At this point, Zazzle should still be protected from the infringement committed by a user. But that's not how the court sees it. The court sees an infringing uploaded image (where Zazzle is still protected) being turned into a physical product and decides this is the point where Zazzle loses its safe harbor. From the decision [PDF]:GYPI argues that Zazzle had “the right and ability to control” the sale of infringing products because “it is actively involved in selecting the products that are sold, pricing those products, selling the products, manufacturing the products, inspecting the products, and finally packaging and delivering the products.” Doc. 50-1 at 27. Zazzle does not dispute that it engages in these activities. The Court concludes that Zazzle had the right and ability to control the types of products it produced. Unlike eBay or Amazon, Zazzle’s role is not limited to facilitating the sale of products owned and marketed by third parties. Zazzle creates the products. If Zazzle lacks the right and ability to control the sale of products it creates, it is hard to imagine any defendant that would have such a right. Without the uploads, there would be no infringement. Zazzle may benefit indirectly from the sale of products with infringing images, but the court still feels Zazzle should be held accountable even if it has almost no direct input in the physical product creation other than forwarding the order to the print-on-demand contractor. As Goldman pointed out, the reasoning doesn't add up. But that's OK, says the court, Zazzle's reasoning doesn't add up either.Zazzle argues that it lacked the ability to control the sale of infringing products because, in practice, “the production process was effectively automatic . . . after a product was ordered and approved by Zazzle’s CMT [content management team].” Doc. 69 at 25. That is a non sequitur. It doesn’t matter if Zazzle lacked the ability to control its production process after CMT approved the product; presumably CMT had the authority to reject products that were infringing. More to the point, even if the entire process were automatic, that would suggest at most that Zazzle had chosen not to exercise its right and ability to reject infringing products, not that it lacked the right or ability to do so. GYPI is entitled to summary judgment that Zazzle is not protected under § 512(c) to the extent it manufactured and sold physical products bearing infringing images. There is no further attempt made to explain the court's rationale. For some reason, it can't seem to get past the production of physical products, even though Zazzle claims it has no more control over that than it does over uploaded content. In effect, the court sets up a double standard: physical vs. digital. Zazzle is protected if users upload infringing images but not if customers decide they want a copy of this image on a t-shirt or poster.The CMT mentioned above sounds like little more than a perfunctory infringement check similar to the one that accompanies each image upload. And if the court decides to untwist Zazzle's "non sequitur" and hold it up for examination, Zazzle shouldn't be able to avail itself of DMCA safe harbors at the point of image upload either. The decision is internally inconsistent. Given the number of print-on-demand companies out there, this bizarre internal split on physical/digital infringement could cause problems down the road.
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posted at: 12:03am on 12-Jul-2017
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House Budget Proposal Includes The Creation Of The United States Space Corps.
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There has been much in the way of focus on all the different ways Congress has devised to fight with itself as of recent, with most of that revolving around stupid partisan bickering and political posturing. Still, there are real proposals on the table, and currently the 2018 defense budget is one of them. We've already talked about some recent changes in DoD recruitment strategies that seek to get with the times, as it were. But where those changes were made to stave off dwindling rosters of soldiers at CYBERCOM, the House proposal for 2018 includes the creation of a brand new military branch.Don't get your hopes up too high about becoming a space marine quite yet. But if the House of Representatives' version of the 2018 defense budget goes through, you may soon be able to enlist in the US Space Corps.The House Armed Services Committee (HASC) has breathed new life into those old plans by including a provision in the House version of the 2018 US defense budget that would create a separate military service dedicated to the cause of space as a warfare domain: the US Space Corps. It would also create a separate joint command, the US Space Command, breaking the role out of the US Strategic Command much in the way that was done with the US Cyber Command. The biggest surprise in all of this might well be that it took this long, actually. Cyber Command's battleground is mere decades old, whereas we have been exploring space for more than half a century. Still, there is something unnerving about formalizing Earth's place at the cosmic table as a potential war theater. That said, the proposal does enjoy the rare consensus of bi-partisan support and it's not difficult to understand why. More than ever, we rely on assets outside of our immediate atmosphere to power all sorts of things key to our national security and power. The branch that currently oversees space defense and strategy, the Air Force, is no longer seen as capable of handling the job.There’s been nothing shortsighted about this. We started working on it vigorously in September, and we’ve had countless meetings with a number of experts who have advised us as to how this should be construed. GAO has done three studies on this, all of which tell us that you cannot maintain the current organizational construct of the Air Force and solve the acquisition problems and the operational problems that we have. The Air Force is like any other bureaucracy. They don’t want to change. At some level, this was inevitable. We are humans and, where we go, we fight. So don your helmets and fire up that chainsaw, future space marines, because the next battleground may be the inky blackness of the void. If so, it seems the House of Representatives, at least, wants to be prepared for it.
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