Court Order: Zazzle to pay $460,000 for copyright infringement

A court has determined that online stores, such as Zazzle, that manufacture products cannot enjoy the "safe harbor" benefits of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. §512 normally made available to online service providers - to the extent that they satisfy required conditions.

This is due to the fact that Zazzle has a responsibility to control the production of merchandise for sale and ensure that it does not infringe copyright.

Below I try to tease out the key elements of the case and why the plaintiff succeeded in getting a a ruling that the plaintiff (an agent for an artist) can recover $460,000 in pecuniary damages from Zazzle.

The 'safe harbor' protection is only afforded to those who contend that they only operate as a publishing platform ONLINE. (Which is why Facebook is safe from prosecution). The notion is that an online publishing platform cannot be aware of everything posted 100% of the time. 

However the protection only applies if a site immediately takes action to remove any copyright infringements as soon as it is made aware of them and has received appropriate proof of infringement. (which is why you need to serve a DMCA notice on the host if you see an image of yours online - see What to do about copyright infringement - for artists).

What's different about this court decision

What's different about this court decision is it states that when publication of images by an online platform moves into the production of tangible goods based on those images then the online service provider has the right and responsibility to protect creators from copyright infringement and hence can also become liable for any copyright infringement.

In other words in order for Zazzle  to be protected by the DMCA's safe harbor provisions (relating to storing images of GYP's copyrighted paintings) - the provisions of 17 U.S. Code § 512 - Limitations on liability relating to material online required that Zazzle had to:

• qualify as a service provider 
• lack specific or "red flag" knowledge of the infringement committed by its users; and
• AND importantly for this case "does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity" (para C 1 (b) )

In this case, the Court decided that Zazzle did not pass the third test. 
For the record, this is the​ Zazzle Copyright Policy. I'm guessing it might be rewritten by the lawyers in the future to pass liability for any costs awarded against Zazzle to the user - and make this explicit to every user of Zazzle.
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This judgement has very considerable ramifications for:

• all online service providers of "print on demand"
  
• involved in the production of tangible goods for sale which involve uploaded images that infringe copyright.

Interestingly there is no press release about the Court Judgement on the Zazzle website and no blog post either. I'm unclear as to whether there is going to be an appeal although I understand the level of damages are likely to be contested further.

In effect, the court sets up a double standard: physical vs. digital. Zazzle is protected if users upload infringing images but not if customersdecide they want a copy of this image on a t-shirt or poster.
​Court Says DMCA Safe Harbors Disappear Once Infringing Images Are Printed On Physical Items ​ | Tech Dirt

The claim
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Court Case: California US District Court case (Greg Young Publishing, Inc. v. Zazzle, Inc., 2017 WL 2729584 (C.D. Cal. May 1, 2017) 
Plaintiff - Greg Young Publishing, Inc. 
Defendant - Zazzle, Inc.
The Claim - In brief (as I understand it), the case involved a claim that Zazzle was jointly liable for the copyright infringement of certain images because Zazzle was:

• publicly displaying images of an artist on its website that that GYP represented  and that GYP had never given permission for uploading
• AND that Zazzle was making tangible products from these images which were then sold
• AND Zazzle enjoyed a pecuniary benefit as a result for an activity which it could control i.e. the making of products
• AND that the safe harbor protection consequently did not apply.

GYPI alleges that Zazzle has publicly displayed 41 paintings by Westmoreland or Erickson on its website, and that Zazzle has created consumer products bearing these images. It asserts claims for copyright infringement and seeks injunctive relief, statutory damages (or, in the alternative, actual damages and restitution), and attorney’s fees. 
Case 2:16-cv-04587-SVW-KS Document 81 Filed 05/01/17 ​

The Judgement: Greg Young Publishing, Inc. v. Zazzle, Inc., 2017 WL 2729584 (C.D. Cal. May 1, 2017)
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