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.