Copyright

by Tim Cushing


Filed Under:
copyright, dmca, print on demand, printing

Companies:
zazzle



Court Says DMCA Safe Harbors Disappear Once Infringing Images Are Printed On Physical Items

from the little-known-512(f)-clause-about-'word-became-flesh' dept

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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  • identicon
    Anonymous Coward, 11 Jul 2017 @ 3:46pm

    I have to agree with the court on this issue. It's one thing when safe harbor protects a website from infringing content but when that same site is selling copyrighted content that has printed on merchandise to sell, then that site simply does not deserve protections under safe harbor because you're entering into the realm of selling counterfeit merchandise.

    Don't get me wrong, I run an anime fan site and allow my members to post their fanart and whatnot but I wouldn't expect to receive protections under "fair use" laws or even under "safe harbor" laws the minute I crossed over from posted content to actually selling merchandise with the printed or published works created by someone else.

    If I posted images of a Star Trek t-short on my site, I would expect to be protected. But, when I start selling that t-shirt on my website to generate funds, then those protections wouldn't necessarily protect me from liability.

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    • identicon
      Anonymous Coward, 11 Jul 2017 @ 3:55pm

      Re:

      A pretzel is straiter than your logic. If you are protected from user uploads, because you are only providing the service of storage and distribution, then you should also be protected for sending the designs onto a print on demand service, which should also be protected.

      Remember, most of the time it is not possible to determine who the actual owner of a copyright is, and even harder to determine if a design has been licensed yo a third party. The only infringer is the person who uploads a design, even when that is to a produce on demand site.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Jul 2017 @ 6:32pm

        Re: Re:

        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.

        How about a name swap?

        "Techdirt had chosen not to exercise its right and ability to reject infringing comments, not that it lacked the right or ability to do so."

        Pretzel logic. Slippery slope.

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        • icon
          Stephen T. Stone (profile), 11 Jul 2017 @ 7:59pm

          Re: Re: Re:

          I have seen Alex Jones rants that are more coherent than your comment.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 Jul 2017 @ 4:32am

            Re: Re: Re: Re:

            If you think no one would ever try applying the court's so-called reasoning in this case to other cases you are a fool. Congratulations.

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            • icon
              Stephen T. Stone (profile), 12 Jul 2017 @ 7:52am

              Re: Re: Re: Re: Re:

              Those court cases would need to resemble this one for that to matter. Saying “oh this could happen to any company” and doing a nameswap with Techdirt has no logic to back it up because Techdirt is an entirely different kind of company than Zazzle. Quit being obtuse and make an argument based in reality, not in whatever Infowars-influenced fever dream you happen to be having at the moment.

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              • icon
                PaulT (profile), 12 Jul 2017 @ 8:30am

                Re: Re: Re: Re: Re: Re:

                I forget the quote, it goes something like "for every problem, there's a solution that's simple, easy to understand... and totally wrong". That is, real world problems tend to have solutions that aren't so easy, but if you don't think too hard there's always an easy one that sounds perfect.

                They might not be loons, just not thinking the proposed issue through before they hit submit.

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        • identicon
          Anonymous Coward, 12 Jul 2017 @ 12:53am

          Re: Re: Re:

          Dude, if you were any less coherent, you'd put covfefe to shame.

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    • identicon
      Anonymous Coward, 11 Jul 2017 @ 4:09pm

      Re:

      Your comparison is a little silly, Zazzle isn't a "fan site" where the material has an obvious source.

      A user uploads an image to Zazzle, claims to have the right to use that image, and requests that Zazzle prints that image on a mug, all through an automated process.

      You then expect Zazzle to be liable down the road if it turns out that the user did not, in fact, have the proper rights?

      That's an untenable position.

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    • icon
      Anonymous Anonymous Coward (profile), 11 Jul 2017 @ 4:23pm

      Re:

      Well, why didn't Zazzle just run a picture of the content through the comprehensive copyrighted images database that connect rights holders with those that want to use those images?

      Could it be that because such a database doesn't exist? Could it be that the persons who uploaded the content to Zazzle fraudulently represented that they held the right? Could it be that GYPI should have gone after those up loaders, but maybe thought Zazzle had deeper pockets?

      reply to this | link to this | view in chronology ]

      • icon
        XcOM987 (profile), 12 Jul 2017 @ 4:44am

        Re: Re:

        Good point, I would probably lean on the side it's not possible, even if it were to be matched, there would be false positives, how would they know if there is a licence agreement between the copyright owner and the uploader?

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        • identicon
          Anonymous Coward, 12 Jul 2017 @ 5:01am

          Re: Re: Re:

          how would they know if there is a licence agreement between the copyright owner and the uploader?

          Psychic hot-line!

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          • icon
            PaulT (profile), 12 Jul 2017 @ 5:27am

            Re: Re: Re: Re:

            That's one thing that always gets (deliberately?) missed in these arguments - copyright is not something that applies naturally, in perpetuity, to any content. Permission can be denied to content that was permissible, it can be granted where previously it was not allowed, it can be denied to the public but granted to specified individuals. These permissions can be granted or revoked at any time, without any 3rd party being aware and without any central database to check. Hell, it may even be unknown who actually holds the rights to grant permission.

            It's literally impossible for them to check that they are compliant 100% of the time, so have to fall back on things like statements from customers and warning from copyright holders, else these kinds of services cannot exist. Which, of course, in the mind of the gatekeeper is exactly what they want - the only things to be legally allowed to be sold to be things that they sell.

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    • icon
      TKnarr (profile), 11 Jul 2017 @ 4:36pm

      Re:

      Tiffany Inc. v. Ebay Inc. would seem to indicate otherwise.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Jul 2017 @ 6:23pm

      Re:

      If I posted images of a Star Trek t-short on my site, I would expect to be protected. But, when I start selling that t-shirt on my website to generate funds, then those protections wouldn't necessarily protect me from liability.

      Unless you were Amazon, then you would totally be protected, huh? Yeah, I see how that works.

      reply to this | link to this | view in chronology ]

    • icon
      MyNameHere (profile), 11 Jul 2017 @ 6:55pm

      Re:

      I agree too. DMCA is "digital" once you move an image into the physical world (printing it) it becomes subject to all the other normal copyright laws that don't have a "take back" like DMCA.

      You just have to think it through. Imagine for a minute that you want to print T-shirts with copyright images of rappers and rock stars on them. Since you can't use the copyright images directly, legally, do you think it would be acceptable to (a) ask a friend to upload them to a file sharing site, and then (b) download them and use them to print shirts? Do you honestly think the images on the shirts would suddenly not be subject to copyright?

      DMCA creates a crater size exception in copyright related only to things in the digital realm. It isn't a magic copyright eraser, nor does it negate the need to secure rights before re-using the image.

      Court got it exactly right, perfectly balancing it.

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      • icon
        That One Guy (profile), 11 Jul 2017 @ 7:34pm

        Re: Re:

        'You should have magically known that the content used was infringing' isn't even remotely close to 'balanced', and I've no idea why you threw together that 'example' as it has nothing to do with what happened here.

        The fact that their business involves an automated process to turn digital content into physical goods does not change the underlying idea that holding a company liable for the actions of the users is an absurd idea and will cause significant harm.

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      • icon
        Stephen T. Stone (profile), 11 Jul 2017 @ 9:13pm

        Re: Re:

        Imagine for a minute that you want to print T-shirts with copyright images of rappers and rock stars on them. Since you can't use the copyright images directly, legally, do you think it would be acceptable to (a) ask a friend to upload them to a file sharing site, and then (b) download them and use them to print shirts? Do you honestly think the images on the shirts would suddenly not be subject to copyright?

        Take your scarecrow elsewhere, Dorothy; he will do you no good here.

        This case centres around the notion that Zazzle should face legal liability for copyright infringement. That notion says the company should be held liable because it automates a process through which people can print shirts using images to which they do not own the rights. If you agree with that notion, you should answer these two questions:

        • How can Zazzle know, with absolute certainty, what images infringe upon an existing copyright—and are not protected by parody or Fair Use laws—until it is notified of infringement?

        • How much time, money, and manpower must Zazzle dedicate to either preventing infringement or policing user uploads for potential infringement?

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        • icon
          MyNameHere (profile), 12 Jul 2017 @ 2:29am

          Re: Re: Re:

          Yes, and it makes sense that they should be liable. They have all the potential to stop infringement before it starts.

          The problem you face here is that Zazzle enters into a defacto partnership with the shirt's "creator". That partnership puts them in a different category from say a "printer for hire". Zazzle takes care of all of the fulfillment, payments, and such, and pays a commission on the sale to the creator. That makes them the "publisher" if you will, and not just an innocent third party.

          "How much time, money, and manpower must Zazzle dedicate to either preventing infringement or policing user uploads for potential infringement?"

          Actually none. They only have to worry when they enter into a partnership to actually print them onto shirts and things. Then they have real world problems that any partnership would have.

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          • identicon
            Anonymous Coward, 12 Jul 2017 @ 2:35am

            Re: Re: Re: Re:

            How does anybody know that Greg Young Publishing International actually owns the copyright?

            Oh thats right they claim that somebody gave them the picture claiming that they were the owner of the copyright.

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          • icon
            Stephen T. Stone (profile), 12 Jul 2017 @ 7:58am

            Re: Re: Re: Re:

            They have all the potential to stop infringement before it starts.

            I have the potential to be the next Ernest Hemingway, but potential means jack shit if I do not actually write a book. So how—in actual reality with actual existing resources, not in the dreamscape of “potential”—can Zazzle stop infringement before it starts?

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            • icon
              PaulT (profile), 12 Jul 2017 @ 8:35am

              Re: Re: Re: Re: Re:

              Knowing this guy, presumably by only accepting submissions from pre-approved corporate suppliers. You can print all the t-shirts you want, so long as you can only use Getty Images approved sources! Sorry, independent artists, you have to sign a contract with them first and agree to have half your profits taken as commission. You wouldn't want a pirate to rip you off now would you?

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Jul 2017 @ 1:01am

        Re: Re:

        not really, the issue is with the DMCA safe harbors. This isn't a digital problem, meaning the issue has been taken out of the scope of DMCA. So it is logically wrong to take away protection for a law the issue dose not fall under.

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      • identicon
        Anonymous Coward, 12 Jul 2017 @ 4:35am

        Re: Re:

        (a) ask a friend to upload them to a file sharing site, and then (b) download them and use them to print shirts?

        Do you have any evidence that this is what Zazzle is doing or are you just making crap up?

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        • icon
          MyNameHere (profile), 12 Jul 2017 @ 6:26am

          Re: Re: Re:

          I am not claiming Zazzle anything. I am creating a simpler parallel so that people can understand it without any extra clutter in the way.

          The point is that a copyright image does not suddenly lose it's copyright because it's been through the online wash. It's not magic. It's clear as clear can be. DMCA does not apply to meat world uses of copyright material.

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          • icon
            PaulT (profile), 12 Jul 2017 @ 6:51am

            Re: Re: Re: Re:

            "The point is that a copyright image does not suddenly lose it's copyright because it's been through the online wash"

            That would be a good counterpoint if anyone was claiming that something like that happens. All that's being said is that the person committing the copyright infringement should be responsible, that protections for innocent parties shouldn't be removed just because what came out the other side was a T shirt instead of a stream.

            Is there anyone actually claiming that physical goods no longer have copyright protection if they started as an online product, or is this one of your famous hallucinations?

            "DMCA does not apply to meat world uses of copyright material"

            ...because it's an additional patch that was added to copyright to address the fact online service providers neither originate nor approve user-generated content. It's a flaw that it didn't conceive of hybrid services, but that's hardly the only flaw in that mess of a law.

            We're arguing that this is an indication the system might need to be updated, you seem to be arguing that this means that any combination of online & offline services need to be punishable as if there's deliberate criminal activity.

            Yet another example of "I'll construct a threadbare scarecrow and attack that rather than address anyone's real point".

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            • icon
              MyNameHere (profile), 13 Jul 2017 @ 2:10am

              Re: Re: Re: Re: Re:

              "That would be a good counterpoint if anyone was claiming that something like that happens. All that's being said is that the person committing the copyright infringement should be responsible, that protections for innocent parties shouldn't be removed just because what came out the other side was a T shirt instead of a stream."

              Well, see, there's the rub. On a t-shirt, it's no longer digital, it's physical. DMCA no longer applied.

              But more importantly, it's Zazzle's position in all of this. They print the shirts, they sell them, they collect the money, and they pay a commission. They are not an "innocent service provider" they are a willing partner in every transaction.

              "Yet another example of "I'll construct a threadbare scarecrow and attack that rather than address anyone's real point"."

              The real point is exactly what Zazzle is and does in the transaction. They are not an innocent service provider. The images once printed are real world items subject to regular copyright laws. It's not difficult, unless you are trying to be really, really obtuse (and generally, you do a great job)

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              • icon
                Stephen T. Stone (profile), 13 Jul 2017 @ 3:00am

                Re: Re: Re: Re: Re: Re:

                On a t-shirt, it's no longer digital, it's physical. DMCA no longer applied.

                This is your reminder that the DMCA is an extension of federal copyright law meant to make reporting digital copyright infringement a much easier process (amongst other things).

                They print the shirts, they sell them, they collect the money, and they pay a commission.

                Yes, and how does that automatically disqualify them for safe harbor protections, again?

                They are not an "innocent service provider" they are a willing partner in every transaction.

                Being a willing partner in a transaction involving copyright infringement does not necessarily put legal liability for the infringement on Zazzle. Now, if someone at the company knew an image was 100% infringing and let the infringement happen, that would screw Zazzle over pretty damn hard. But this raises the question of how anyone can know any given use of any image is legitimately infringing before they are notified of the infringement.

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              • icon
                PaulT (profile), 14 Jul 2017 @ 12:45am

                Re: Re: Re: Re: Re: Re:

                "Well, see, there's the rub. On a t-shirt, it's no longer digital, it's physical. DMCA no longer applied."

                ...which is the problem. You won't agree of course, because pointless contrarianism is your game. But the entire issue here is that by virtue of switching mediums, the company suddenly loses its protections. Automate the creation of an image in a web gallery from user input? Protected. Automate that to print to a shirt instead of a folder? Illegal.

                If you're not too married to idea that physical and digital should somehow be separated at whatever cost - and this is increasingly not the case - this raises numerous problems going forward. This creates many issue, both with chilling effects on new businesses and opening up many problems for existing businesses who have no direct control over the actions of their users. As ever, nobody's saying that physical objects should have no copyright, only that the fundamental reason for section 230 existing - 3rd parties not being held responsible for the actions of others over whom they have no control - apply to a physical world that's starting to be vulnerable to the issues facing the digital world.

                But, you're too interested in ignoring logic and trying to be a dick to people here to understand their actual arguments, so you probably won't address the reality of what I'm actually saying.

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          • identicon
            Anonymous Coward, 12 Jul 2017 @ 10:50am

            Re: Re: Re: Re:

            I am not claiming Zazzle anything. I am creating a simpler parallel so that people can understand it without any extra clutter in the way.

            Exactly. Here's an even simpler parallel so that people can understand it without any extra clutter in the way. DMCA safe harbours don't mean that Zazzle employees can go around raping babies at will. How can people not understand that?

            (see, I can play too)

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          • icon
            Bergman (profile), 12 Jul 2017 @ 2:05pm

            Re: Re: Re: Re:

            Clutter like the facts, unfortunately.

            No one but you is even hinting, let alone claiming, that washing a copyrighted image through digital formats strips the copyright.

            The problem here is that Zazzle sells blank t-shirts, blank mugs, blank bumper stickers. Through an automated process that may well be completely free of human hands except the minimum wage guy that loads cartridges of blank consumables into the machines, Zazzle allows users to print images onto blank media and ship them to themselves or others.

            Zazzle's terms of service prohibit copyright violations by the users, who in turn assert that they own either the copyrights or at least a license to anything they uploaded and printed. This is the same process that allows a movie studio to merchandise their movies -- they assert to the toy manufacturer that the studio owns the rights to the movie characters, and the toy manufacturer makes toys of those characters.

            This is how the system is supposed to work, and why companies like Zazzle need safe harbors to function.

            For that matter, without those safe harbors you wouldn't be able to comment here, given the risk you might violate a copyright in a post.

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    • icon
      XcOM987 (profile), 12 Jul 2017 @ 4:41am

      Re: Why Not?

      Why shouldn't they get safe harbor? the whole point of it is they are protected, regardless of what the users are using their systems for, once notified via the DMCA process provided they take down the design and no longer print/sell any more there should be no issues, they have fullfilled their end of the deal.

      The failings is on this company for not notifying them of the infringing content, had they notified them, and they continue selling the items then they lose their safe harbor protection.

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      • identicon
        Bruce C., 12 Jul 2017 @ 5:10am

        Re: Re: Why Not?

        The real problem with this case isn't the inconsistency from the court, it's the inconsistency in the law.

        Taking copyrighted content ans selling merchandise that incorporates that copyrighted content has always been copyright infringement. That's why Disney can go after pre-schools that use murals of their characters and T-Shirt designers can go after people who sell coffee mugs using the same design.

        The DMCA created a safe-harbor for online content where pseudo-public forums/social media would not be liable for infringing content posted by users.

        So here's a question: Does Zazzle's print on demand service allow users to select from images uploaded by other users?

        If the answer is "no", then Zazzle should be protected by DMCA as they were just acting as a contract printer for the person who uploaded the images. The analogy here would be if someone is selling copyrighted T-Shirts, do you also go after the factory that they ordered the prints from? IANAL, so maybe there's a problem for the factory in this case as well, but it seems unlikely.

        If the answer is "yes" that Zazzle allowed people to buy merchandise based on images uploaded by other users, then they are also acting as the distributor of the physical merchandise.

        This makes things more complicated and points up the inconsistency in the law. If you don't make them liable for this distribution, then distributing bootleg items in the online market is treated differently from the bricks and mortar market. Does the DMCA safe-harbor protect physical objects as well as online/virtual objects?

        Assuming Zazzle was re-selling designs uploaded by users to any user on the platform, their position isn't quite the same as the factory that prints up bootleg T-Shirts for a 3rd party, or a pure social media platform where users post derivative or infringing content online. It's more analogous to a factory that prints up extra copies of the T-Shirts ordered and starts selling them on the side. Do they get a safe-harbor from the DMCA just because those sales were online and not in a flea-market?

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        • icon
          XcOM987 (profile), 12 Jul 2017 @ 5:52am

          Re: Re: Re: Why Not?

          This is a very good point, and to counter your point of Zazzle being liable because they allowed others to order uploads from other people.

          Should TechDirt be liable because someone posts text from a book that's copyrighted and they lose their safe harbor because others could read it. (I will preface that this isn't a perfect analogy)

          But to your second point would you go after a factory that made items to order for someone, no you wouldn't they only did what they were requested to do, they don't check the copyright's or that the person ordering has the rights to reproduce the work in such a way, so you go after who placed the order in the first place and is selling the items.

          In my view (Usual IANAL blerb) this stems from the fact that both law's don't cover what is happening here, one law covers half of the business and another law covers the other half, this is another example of the law's being outdated for todays economy and in dire need of being updated for the better.

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          • icon
            PaulT (profile), 12 Jul 2017 @ 6:18am

            Re: Re: Re: Re: Why Not?

            Generally speaking, the way copyright is enforced only amounts to a bandage that was applied when people realised the old world was falling apart. For example, copyright infringement tended to have the assumption that there was a profit motive, and penalties were applied with that assumption. This worked, since for copying on any large scale to happen, it required significant investment, and it would be assumed that there would be a verifiable paper trail to follow (e.g. a legit CD plant would have their Sony contract to show they were asked to copy the new Michael Jackson CD, the counterfeiters wouldn't). People who copied individual CDs for themselves or friends were unlikely to be prosecuted, or even noticed.

            This fell apart as soon as Napster gained popularity. Instead of people spending thousands of dollars on equipment to copy CDs, they just copied a file to a folder their app could access. Instead of a few processing plants to crack down on, you suddenly had every PC in the world as a suspect. The outcry from the labels caused some enforcement under the old rules, but it was clearly not workable in the new paradigm. One of the things that became clear is that pre-screening the volume of content online would be impossible without killing major parts of the new economy, so section 230 and similar patches came into effect. This specifically releases service providers from culpability so long as they are solely providers and comply with complaints from copyright holders where appropriate.

            What these people are essentially now trying to say is that the digital protections are fine, but because something dared to trespass back on the physical world then they should be held responsible. That's where the bandage is slipping - Zazzle have no greater control or ability than a company that remains purely online, but because the usual assumption about physical manufacturers is that they do have these abilities, they've fallen against an outdated section of the law.

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            • identicon
              Andrew D. Todd, 12 Jul 2017 @ 10:33am

              Why Not Do It At Home?

              I was looking at the catalog of the British National Maritime Museum's collection of decorative arts, and a lot of the exhibits are cheap china plates, mugs, etc., illustrated with transfer decals. They would use a printing press to put a pattern of ink onto a piece of paper (or perhaps fine cloth), and then they would apply the paper (or cloth) to a piece of pottery, and cook it in an oven to transfer the image. The result was an inexpensive memorabilia item of Admiral Rodney or Admiral Nelson. Each battle was commemorated with more cheap crockery.

              Very well, I imagine the system is adaptable to an ink-jet printer. I do not know what products are already manufactured. You would have a sheet with a waterproof layer, and then a layer of thin sponge, formulated in such a way as to be porous in a vertical direction, but not a horizontal direction. Zazzle could re-invent itself as a seller of tools and materials for decorating objects at home, via transfer prints.

              I remember reading ,say, thirty-five or forty years ago, in one of those mimeographed tech sheets which circulated informally, about an ad-hoc process for using a toner-based photo-copier to make printed circuits. The method started by copying the design onto a sheet of plastic. The toner could subsequently be transfered to a copper-coated piece of plastic, which would then be acid-etched, and the toner would function as an "acid-resist." Not a terribly elegant process, but it apparently worked well enough for hobbyist purposes. Never underestimate what you can "leverage" off a printer.

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              • icon
                Bergman (profile), 12 Jul 2017 @ 2:14pm

                Re: Why Not Do It At Home?

                Yeah, but doing it at home requires either a great deal of skill or a great deal of expense. Neither is an effective use of resources if you want to print one image onto one coffee mug.

                So you go to a company like Zazzle that already has the skill and equipment, and pay them a much more reasonable price to print one image onto one coffee mug.

                In the process you tell them that you are at least licensed to make the copy, even if you're not the outright owner of the copyright, and since Zazzle has no way to verify that you are telling the truth -- and would have no infallible way to verify even with a major corporation instead of a private citizen -- they take your word for it and print the mug.

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                • identicon
                  Andrew D. Todd, 12 Jul 2017 @ 4:58pm

                  Re: Re: Why Not Do It At Home?

                  Well, in the first place, you probably get a kit capable of doing ten or twenty mugs, and if you want one mug, you will probably want others. Someone will have worked out the kit so that it is easy to use. Some of the kit furniture I have put together has had very odd fastener systems, designed to lend themselves to being assembled by the customer.

                  Of course, I like making things, though my main interests, manual as distinct from intellectual, are in sewing and carpentry, and focused on useful rather than ornamental objects. I find, for example, that sewing machines are much cheaper than the clothes they can make, alter, or mend, over ten years or so. With computers popping up in every kind of machine, it might be worthwhile to find out what else is ridiculously inexpensive.

                  There's no law saying that your particular object of decoration has to be a mug, and you can always find something which is compatible with your printer.

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          • identicon
            Bruce C., 12 Jul 2017 @ 1:29pm

            Re: Re: Re: Re: Why Not?

            As another prong to this debate, one poster brought up the fact that users uploading copyrighted material that they don't have rights to are violating Zazzle's TOS. If Zazzle's lawyers are smart enough, they'd have an indemnification clause for copyright infringement as well. This may not do them much good IRL -- they still have to go back and sue the users who violated TOS to recover their penalties.

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        • icon
          BernardoVerda (profile), 14 Jul 2017 @ 11:45am

          Re: Re: Re: Why Not?

          Something I need clarification on:

          How much difference does it make (theory and practice) that the individuals who are ordering these printed t-shirts are making individual "one-offs" for their own use?


          I understand that people can do much the same thing for themselves,at home, with a suitable consumer/home ink-jet printer, sheets of "transfer media" and an ordinary clothes iron.

          Would these designs still be "infringing" if the customers used a home printer, and did it all themselves? Have they ever been pursued in the courts?

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          • icon
            PaulT (profile), 17 Jul 2017 @ 2:11am

            Re: Re: Re: Re: Why Not?

            The way I understand it is that it certainly would be infringing but the guy doing it at home would be neither a big enough target to sue nor a big enough target to be on their radar to begin with. With a company like Zazzle, they're large enough to be visible and a viable target, even if they only technically infringe in 0.01% of their stock while the guy at home sells 100% infringing stock.

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    • identicon
      Michael, 12 Jul 2017 @ 8:50am

      Re:

      "same site is selling copyrighted content that has printed on merchandise to sell"

      The problem is that they did none of this. A user uploaded an image under copyright that they did not have permission to upload. That user agreed to a TOS that they would not do so. The user (or another one) then selected that image to be printed on a T-Shirt. The site made none of these decisions.

      By the logic of the court, you could then also argue that if I downloaded an image from the web that I was not licensed to use and took it to a print shop and had it printed on the T-Shirt - the site I downloaded the image from is liable for infringement? The only difference in this case is that Zazzle made it easier for the user to send the image to the printing company.

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      • icon
        Bergman (profile), 12 Jul 2017 @ 2:16pm

        Re: Re:

        It's crazier than that. If you download a copyrighted image while physically present on the grounds of the courthouse and make an illegal print of it onto a piece of paper, then by this court's own ruling, the court itself would be liable.

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        • identicon
          Anonymous Coward, 12 Jul 2017 @ 6:07pm

          Re: Re: Re:

          It's crazier than that. If you download a copyrighted image while physically present on the grounds of the courthouse and make an illegal print of it onto a piece of paper, then by this court's own ruling, the court itself would be liable.

          Of course! But then, rulers are often reluctant to apply their own rules to themselves.

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    • identicon
      tonylurker, 12 Jul 2017 @ 10:01am

      Re:

      So, if a person takes a copyrighted picture to the local CVS and makes a print, you are saying that CVS should be held responsible for the copyright infringement? Should Xerox be held liable for all illegal copies made by it's photocopiers?

      It seems to me that Zazzle should be seen as merely a printer, not a publisher.

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    • icon
      Bergman (profile), 12 Jul 2017 @ 1:53pm

      Re:

      The problem with the logic is twofold.

      First, copying is copying, and it is the act of copying, not the media it is copied onto, that copyright law governs. It does not matter if the media is electrons or ceramic or cotton fiber.

      Second, Zazzle is not selling the image that was copied, they are selling blank mugs, blank t-shirts and blank file spaces for their users to fill. Since they didn't go out and mug (heh) someone for those blank mugs, they bought them legally from a distributor, those mugs are legal for Zazzle to sell.

      It's entirely possible that no one at Zazzle sees what is printed on the mugs before they are shipped out, if the process is sufficiently automated.

      By the court's logic, if a third party making a physical copy voids safe harbor protections for the host, then the court itself could be sued for any such copying being done on the courthouse grounds, even by a third party that is just there for fresh air and a little shade while they print things off the internet.

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  • identicon
    Anonymous Coward, 11 Jul 2017 @ 4:03pm

    I can't wait for blue_balls to comment. Soon as he does; boom print and sell on the internet. I shall call it "Everwrong, the insane rants of a tiny little man." I full expect to make dozens of pennies!

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  • identicon
    Anonymous Coward, 11 Jul 2017 @ 4:04pm

    The point you're missing is that when you start selling merchandise that features copy-protected content, then your site is legally liable for any damages that the copyright owner may feel they have been inflicted.

    Just because someone created content doesn't mean you can take someone else's copy-protected content and sell it for your own personal gain.

    Zazzle was undoubtedly aware that what they were doing would be considered copyright infringement. Anyone who operates a website has been informed as to the copyright penalties that could be enforced. Any web-owner, web-master or administrator who claims otherwise is a complete fucking moron. Before I even created my website, I knew the copyright issues involved and I made to inform my community to not put my site at risk for certain content.

    Zazzle committed copyright violates and they should be penalized and forced to pay those from whom it stole that copyrighted content in order to print that content on merchandise in order to sell it. Just because you can do it does not make it right. If you do, expect to be sued and take it like a man.

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    • identicon
      Anonymous Coward, 11 Jul 2017 @ 4:09pm

      Re:

      I was with you right up until they "stole" content.

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    • identicon
      Anonymous Coward, 11 Jul 2017 @ 4:10pm

      Re:

      You seem to be missing a point intentionally.

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    • icon
      Stephen T. Stone (profile), 11 Jul 2017 @ 4:11pm

      Re:

      The point you're missing is that when you start selling merchandise that features copy-protected content, then your site is legally liable for any damages that the copyright owner may feel they have been inflicted.

      The point you’re missing is that when companies must invest countless resources into sussing out who owns what copyright for what content and whether they have a license and all that other shit, companies will either shut down or shut off the one service people use them for just to avoid all the hassle.

      The point you’re missing is that Zazzle should not be held liable for someone else’s infringement because Zazzle cannot know, prior to a notification of infringement, that someone’s copyright is being infringed.

      The point you’re missing is that safe harbor protections exist so companies like Zazzle can continue to operate without (too much) fear of being taken apart by an IP lawsuit.

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      • identicon
        Anonymous Coward, 11 Jul 2017 @ 4:25pm

        Re: Re:

        @ Stone: "companies will either shut down or shut off the one service people use them for just to avoid all the hassle." -- No, print shops, vinyl record, DVD duplicators, silk screen shops, even T-shirt shops, and the like have managed to avoid this for a 100 years.

        If your business model doesn't take into account the practical facts of law, specifically copyright, then it should fail. One way to avoid this is the publisher way: you get the persons to sign and indemnify the shop. Problem solved, no need to destroy all of copyright.

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        • identicon
          Anonymous Coward, 11 Jul 2017 @ 4:37pm

          Re: Re: Re:

          "One way to avoid this is the publisher way: you get the persons to sign and indemnify the shop. Problem solved, no need to destroy all of copyright."

          You're an idiot if you think Zazzle doesn't already do this. Read their agreements. It's in there. And this court decision still happened. Maybe there's a flaw in the court decision AND your argument...

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        • icon
          Stephen T. Stone (profile), 11 Jul 2017 @ 4:38pm

          Re: Re: Re:

          print shops, vinyl record, DVD duplicators, silk screen shops, even T-shirt shops, and the like have managed to avoid this for a 100 years

          Why should Zazzle have fewer protections than those businesses?

          One way to avoid this is the publisher way: you get the persons to sign and indemnify the shop.

          Why should Zazzle have to take legal statements from customers when the law should already protect the company from liability for someone else's copyright infringement?

          Problem solved, no need to destroy all of copyright.

          How does giving Zazzle any form of safe harbor protection “destroy all of copyright”?

          (Sidebar: I would argue that copyright deserves destruction because it was never designed for a society where copying and distributing an entire book can takes mere seconds. Whether it deserves reconstruction is up for debate.)

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        • icon
          That One Guy (profile), 11 Jul 2017 @ 4:46pm

          Re: Re: Re:

          If your business model doesn't take into account the practical facts of law, specifically copyright, then it should fail.

          Which has what to do with the fact that a site has no way of knowing whether or not someone holds the rights to a particular bit of imaginary property or is merely claiming that they do?

          The law says that sites aren't liable for the infringing content posted by their users in large part because it's simply not possible for them to know unless they've been informed, and trying to figure it out themselves would be all but impossible and an incredible burden such that most wouldn't even try were they forced to do so.

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        • icon
          orbitalinsertion (profile), 11 Jul 2017 @ 5:00pm

          Re: Re: Re:

          The practical fact of the law, up until this ruling, would be that if someone notified them of infringement, they would remove the offending content and not otherwise reproduce it on demand. That is wholly reasonable.

          But instead you have someone who would rather sue a bigger fish instead. And any reasonable outfit would probably compensate the copyright holder. But no, the point of lawsuits like this is to extract a toll far, far beyond any possible value of the infringement (+ vig and punitive damages). i.e., i would never make so much money licensing or selling my own works, i can only hope someone infringes in a way that they involve someone with deeper pockets.

          This reasoning should fly at all in a non-internet space. What if someone decides to take a work to a printer for production. How would the printer know the matter to be printed is unlicensed reproduction of another party's work unless it is so famous as to have generic household recognition? Shall they demand copyright papers showing the person has ownership or reproduction rights? Oh wait. In a system where everything automatically receives copyright, wanted or not, there are no papers.

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          • identicon
            Anonymous Coward, 12 Jul 2017 @ 10:17am

            Re: Re: Re: Re:

            "The practical fact of the law, up until this ruling, would be that if someone notified them of infringement, they would remove the offending content and not otherwise reproduce it on demand. That is wholly reasonable."

            And I can confirm this happens because I found some of my designs on a Zazzle store and sent in a notice and they removed the content (and the infringer's store). I then opened up my own store since it seemed someone thought it was worth selling.

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        • icon
          PaulT (profile), 12 Jul 2017 @ 2:29am

          Re: Re: Re:

          "No, print shops, vinyl record, DVD duplicators, silk screen shops, even T-shirt shops, and the like have managed to avoid this for a 100 years."

          You honestly think that they've never been targeted with such claims despite having taken all steps to avoid infringement? Really? Or the flip side - I've seen plenty of such places openly infringe, but they're never targeted because they're too small (either to appear on the radar of large corporations or because they don't have the money to make it worthwhile).

          That seems to be the problem with a lot of people here, they ignore objective reality when they think they can score points against the article.

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        • identicon
          Anonymous Coward, 12 Jul 2017 @ 4:38am

          Re: Re: Re:

          No, print shops, vinyl record, DVD duplicators, silk screen shops, even T-shirt shops, and the like have managed to avoid this for a 100 years.

          Sorry to burst your bubble, but there have been plenty of such cases.

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    • identicon
      Anonymous Coward, 11 Jul 2017 @ 4:42pm

      Re:

      "Zazzle was undoubtedly aware that what they were doing would be considered copyright infringement...Before I even created my website, I knew the copyright issues involved and I made to inform my community to not put my site at risk for certain content."

      So you're saying you aren't familiar with Zazzle at all. Zazzle is a large business that has users uploading millions of designs. They can't vet everything that gets uploaded. Their terms of use and agreements require users to agree that the users who upload the designs are the rightful owners of the copyrights. Zazzle didn't steal shit. If anything Zazzle is more of a victim than just a digital service because they spent materials and time and effort to print the designs on merchandise that they can't sell.

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    • icon
      Bergman (profile), 12 Jul 2017 @ 2:20pm

      Re:

      Suppose I go out and ask a local web cartoonist for permission to make a copy of one of his strips onto a single t-shirt for personal use. I pay him $20 for the license and he gives his oral consent.

      Suppose someone else goes and downloads the strip off his website without permission.

      We both go to Zazzle's website, make a contractual agreement to only upload images we have the right to upload, then upload the image we copied. Each of us then asks Zazzle to print a t-shirt.

      One of those t-shirts is 100% legal, the other is copyright violation and breach of contract. Both files have the same byte count, same checksum, were copied using the same version of the same web browser and created on the same day. Both were uploaded to the same company (Zazzle) within 5 minutes of each other.

      How does Zazzle determine which is the legal copy and which is not?

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      • identicon
        Anonymous Coward, 12 Jul 2017 @ 6:11pm

        Re: Re:

        How does Zazzle determine which is the legal copy and which is not?

        By magic, of course! Ain't copyright great?

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  • identicon
    Anonmylous, 11 Jul 2017 @ 4:10pm

    Conflation conflagration

    "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."

    So, this statement is meant to base off 512(c)(b), which is the financial benefit issue that would negate protections granted. Which, on its face, would likely be enough to sink Zazzle's battleship. Nuanced, Zazzle may not be liable for user uploads to its website, but as party to each sale of the infringing content, could be (strangely, if Zazzle made no money from each sale, they'd be in the clear). Its... weird, because its not happened before, or rarely anyways. It'll be interesting to see this go through appeals, and is yet another indicator the DMCA is badly written Copyright propaganda that was left for the Courts to interpret.

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  • icon
    aerinai (profile), 11 Jul 2017 @ 4:13pm

    Sue the infringer, not the company

    The true test of the merit of the case is this: had GYPI asked Zazzle for the information of the person who created the design and sued them; sure... you might have a case.

    Suing Zazzle for the infringement of someone else? You are cash grabbing.

    Zazzle, or any other company for that matter (Wal-Mart, Kinkos, etc) has any idea whether or not an item is infringing. They usually have some legalese saying: 'The Person using the reproduction equipment is liable for any infringement.'

    Follow the money. This is a poorly decided case by the courts plain and simple.

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    identicon
    Anonymous Coward, 11 Jul 2017 @ 4:19pm

    NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

    This is BASIC COMMON LAW, just the particular drawback to print shops, just as pawn shops must try to avoid stolen items, bars must not serve minors, pilots must dodge UFOs, journalists must state sponsorship by companies mentioned in pieces, and lawyers must determine that cases have some merit. And so on. Everyone know the special rules except Techdirt.

    Solution: put eyeballs on it at the "CMT" stage. The volume isn't that high. You seem to believe that "automatic" is a way to avoid law. -- Yes, I know that a "business model" just goes much easier if don't bother with the law. That's not new because on "the internets".

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    • icon
      Stephen T. Stone (profile), 11 Jul 2017 @ 4:45pm

      Re:

      a shop printing text on paper has some duty to be sure it's not infringed

      I cannot imagine that a print shop will spend hours upon hours of resources just to make sure an excerpt from a book has been fully licensed for print on a bunch of T-shirts that will be sent to a corporate retreat and given away to a bunch of people who will end up using the shirts as spare washcloths within a year’s time. I also cannot imagine that the companies who own all the major media copyrights in the world will appreciate being deluged with requests for licensing confirmation by thousands of print shops around the world.

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    • identicon
      Anonymous Coward, 11 Jul 2017 @ 5:00pm

      Re: NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

      "put eyeballs on it at the "CMT" stage."

      This is the same bullshit argument that Google should just know what's infringing or not, when the copyright owners don't even know which copyrighted content belongs to them.

      No matter how many eyes you put on it, it's not easy to determine the copyright status of a design. Feel free to go pick any random item on Zazzle and show us how you would magically discern who legitimately owns the copyright. We'll wait.

      "The volume isn't that high."

      I'm guessing you don't know what the volume is, so that assertion seems like utter bullshit. From what I can find, their annual sales volume is between 5 million and 10 million. So even if you take the lower number in the range, that's still about 13,700 products a day. And they probably don't work 7 days a week, so it's actually probably even more per business day. You expect any company to accurately vet the copyrights status of 13,700 or more products in a work day? If you know how to do that accurately and efficiently, you should be running a business instead of wasting your time in comment sections online. You could make a serious haul selling that technique since apparently no one else has figured it out.

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    • icon
      stderric (profile), 11 Jul 2017 @ 5:06pm

      Re: NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

      This is BASIC COMMON LAW,

      You've got it completely backwards: Common Law actually absolves Zazzle of any and all liability in this case.

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    • identicon
      Canuck, 11 Jul 2017 @ 5:25pm

      Re: NOT difficult at all

      "Solution: put eyeballs on it at the "CMT" stage."

      Right. Because somehow, those eyeballs can determine if an uploader of some random image is authorized to print it. Hell, how would they even know if an image was copyrighted vs public domain?

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    • icon
      Gwiz (profile), 11 Jul 2017 @ 5:33pm

      Re:

      NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed.

       

      Umm...no. I work at a sign shop and absolutely zero resources are spent on verifying copyright on anything. We would most certainly be out of business by now, if we had to waste valuable manhours doing that.

      It's assumed, by default, that the customer has permission for any images/artwork they give us.

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    • icon
      PaulT (profile), 12 Jul 2017 @ 2:37am

      Re: NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

      "bars must not serve minors"

      Your reactionary comment was clearly bullshit, but this is where you just get really stupid. Bars have a specific legal requirement (age at which they can sell to), a specific set of rules to ensure they comply (officially issued IDs). they also get some leeway if they can prove they took all steps to comply but ended up selling to a minor anyway. They get prosecuted for knowingly serving, not because the state decided that the age was 30 at that moment or because they decided that a legally obtained ID wasn't legal for that transaction because reasons.

      Compare that to the situations described - wooly set of rules, no way of officially checking the copyright status of an image, protections (such as asking the client to state that they are the copyright owner) being rejected if someone thinks they can make some profit), and it's an utterly futile task given that copyright owners themselves have been known to misidentify their own property.

      "pilots must dodge UFOs"

      That's a specific rule? I would have thought that not engaging or colliding with unknown objects would go without saying?

      "journalists must state sponsorship by companies mentioned in pieces"

      That's a legal rule? Or, just ethical practice (such as, say, trying to comply with copyright law even if it's impossible to do so 100%).

      "lawyers must determine that cases have some merit"

      Really? That clearly doesn't get enforced if that's true, as there's thousands of examples of that not being the case if the lawyer thinks they can get some billable hours in.

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    • identicon
      Anonymous Coward, 12 Jul 2017 @ 1:20pm

      Re: NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

      You are completely and totally wrong. Wally world prints pictures on paper, and if they believe the image *might* be copyrighted, they just have the customer sign a form that says that they own the copyright. The store has NO obligation to attempt to track down or discern that anyone else might actually own that copyright. That is exactly what Zazzle does. Explain to me the difference.

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      • identicon
        Anonymous Coward, 12 Jul 2017 @ 6:17pm

        Re: Re: NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

        Wally world prints pictures on paper, and if they believe the image might be copyrighted, they just have the customer sign a form that says that they own the copyright.

        Actually, there have been multiple stories in the news about WM flat refusing to print people's photos, signed form or not, citing "copyright". It seems to depend on who's behind the counter and what kind of mood they're in.

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    • icon
      Bergman (profile), 12 Jul 2017 @ 2:28pm

      Re: NOT difficult at all: a shop printing text on paper has some duty to be sure it's not infringed. Doesn't matter if on a T-shirt. -- No, really. This court case proves it.

      The print shop has the duty to ask if the person wanting them to print something has the right to do so. They are not required under ANY law to spend the next 15 years exhaustively hiring investigators to ensure that the person who said yes to their initial inquiry was not lying to them.

      If I give a friend oral permission to go make a t-shirt of something I drew, or print an original story I wrote into a small book, then he has the right to do so because he has a license that grants him that right. No paper contracts required.

      I doubt the eyeballs you suggest would even know what my signature looks like, so if he signed his own on any permission slip they demand be filled out, they'd never know.

      But if they denied him access to their business because what he wanted printed was obviously copyrighted (as, technically, this post is too), they would be interfering with my business and his without lawful justification.

      For that matter, I know quite a few photographers who have trouble getting their own work printed, because photo printing businesses take one look, and decide the photos look 'professional' and therefore refuse to make copies. Even when the photographer signs a permission slip for the printer to make the copies, they often refuse.

      It's why every serious photographer will, sooner or later, build their own dark room and/or invest in a photo printer -- trying to argue with people who know just enough about the law to be dangerous but not enough to be right is just too much hassle.

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  • icon
    Hugh Jasohl (profile), 11 Jul 2017 @ 4:36pm

    Logic train derailed

    I find that old judges who don't understand the cases they are overseeing often release things like this. They can't find the logic and assume no one will notice that their train derailed long ago.

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    • icon
      Bergman (profile), 12 Jul 2017 @ 2:32pm

      Re: Logic train derailed

      By their logic, if someone were to go to their courthouse, stand on the grounds, illegally download a copyrighted image then print it onto a sheet of paper, the judges themselves would be liable for copyright violation.

      That's what a safe harbor does -- it makes the site owner immune to violations committed by third parties.

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    identicon
    Anonymous Coward, 11 Jul 2017 @ 6:30pm

    Zazzle should have known it was opening a Pandoras box full of trouble and should have included into their terms of service about content posted on their site and what users were responsible for. The fact is, they knowingly created a service by which they also knew their users would use their service to facilitate copyright infringement. Simply put, you cannot take an image of the U.S.S. Enterprise, post it on Zazzle and then use Zazzle's own service to place that image on a t-shirt or coffee cup and then sell it for profit or purchase it for your use.

    THIS is what makes Zazzle liable for damages. They really don't have a leg to stand on.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 11 Jul 2017 @ 7:27pm

      Re:

      Zazzle should have known it was opening a Pandoras box full of trouble and should have included into their terms of service about content posted on their site and what users were responsible for.

      About that...

      User Conduct

      In using this Site, you agree to not:

      ...

      c. upload, download, post, email or otherwise transmit any Content that may violate or infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. As a guideline, you may contribute only original work that you have created yourself from original elements. This means you can't use images of celebrities or corporate products, nor images, text, or designs that you've copied from a website without written permission from the owner. You cannot create a "new" image using elements from images other people have created. You cannot contribute a quote or a slogan that is substantially the same as something already written by someone else. By uploading any Content, you represent and warrant that you have the lawful right to reproduce and distribute such Content and that the Content complies with all applicable federal, state and local laws, regulations and ordinances;

      Unless you want companies to require some legal certification that a person has the rights to a given work(which might be a little difficult to manage given the 'copyright by default' nature of the law), or think they should be mind-readers and know when people are lying, your argument is dead in the water. They do require people to assert that they have the rights to the content submitted, if someone lies to them then that's on the person who made the fraudulent claim.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jul 2017 @ 1:27am

      Re:

      The fact is, they knowingly created a service by which they also knew their users would use their service to facilitate copyright infringement

      Perhaps your ability to communicate should be removed, as you have the potential to infringes on copyright every time you open you mouth, or type out words.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 Jul 2017 @ 2:42am

      Re:

      "The fact is, they knowingly created a service by which they also knew their users would use their service to facilitate copyright infringement"

      So did the creators of the VCR, but courts decided they were protected. there's plenty of examples where this has been deemed not to be a bad thing, why is it wrong in the case of Zazzle?

      "Simply put, you cannot take an image of the U.S.S. Enterprise, post it on Zazzle and then use Zazzle's own service to place that image on a t-shirt or coffee cup and then sell it for profit or purchase it for your use."

      Well, you can if it's protected by fair use provisions, you have explicit permission from the copyright owners, etc. At which point is Zazzle meant to be gathering the paperwork for each transaction, and how much do you need them to spend before the perform the service (an effort which may be futile anyway since, for example, even if Zazzle confirm the customer has explicit permission from the copyright owner, that permission can be revoked at any time or sold to a new owner who doesn't grant permission, without them informing Zazzle of the new situation).

      Here's an easier idea - service providers are exempt from copyright infringement from their own users, as long as they have no direct involvement in the infringement, have taken steps to avoid it and stop when made aware of the infringement?

      reply to this | link to this | view in chronology ]

      • identicon
        Bruce C., 12 Jul 2017 @ 4:44am

        Re: Re: VCR

        The difference between this and the VCR case is that the VCR manufacturers weren't selling tapes of copyrighted content that users had submitted.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 12 Jul 2017 @ 4:56am

          Re: Re: Re: VCR

          But, they were selling blank tapes that had the ability to have copyrighted material recorded on them, and performed no check to ensure that was not the case other than ask the customer to abide by copyright rules.

          The only difference between the two is that Zazzle have automated the recording process, so to speak.

          reply to this | link to this | view in chronology ]

          • icon
            Bergman (profile), 12 Jul 2017 @ 2:35pm

            Re: Re: Re: Re: VCR

            Exactly. Zazzle isn't selling copyrighted images. They're selling colored ink and blank media. If you ask them to sell you plain white coffee mugs without any image at all, they can do that.

            reply to this | link to this | view in chronology ]

      • icon
        BernardoVerda (profile), 14 Jul 2017 @ 12:37pm

        Re: Re:

        And if some one uses one of those home "print your own t-shirt" kits -- what's the difference? (Besides having a "big pocket" to sue.)

        More to the point: These outfits like Zazzle aren't actually cheap -- especially when "shipping and handling" gets tacked on.

        If people are, an any significant numbers, going to outfits such as Zazzle, or Cafe Press, or T-Spring for their pop-culture t-shirts and mugs and key-chains, then that just shows there's an unmet need.

        The affronted copyright owners would be much smarter to make their own product available. They could easily make it available at a better price and more conveniently to the fans who want this paraphernalia. (And if it's not worth the copyright owner's trouble to do this, then why mount a full stage production of The Dog in the Manger over it? Just call it free publicity, and call it a day.)

        reply to this | link to this | view in chronology ]

  • identicon
    Avideogameplayer, 12 Jul 2017 @ 4:18am

    You might as well start suing Walmart, Rite Aid, etc...they all have services that let you print pictures on keyrings, mugs, and so on...

    They have the SAME copywrong warning before you use the service.

    We might as well start bankrupting these companies because they can't be copywrong vabysitters...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jul 2017 @ 4:44am

      Re:

      You might as well start suing Walmart, Rite Aid, etc...they all have services that let you print pictures on keyrings, mugs, and so on...

      It seems to depend somewhat upon who you are.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jul 2017 @ 1:23pm

      Re:

      Exactly and precisely right. Great comparison.

      reply to this | link to this | view in chronology ]

  • identicon
    ANON, 12 Jul 2017 @ 7:40am

    Nothing Different

    This is the same issue that has been faced over 20 years ago. If someone comes in to a photo printing shop and asks for copies of a photo (most famously, copying professional wedding photos) the printer must perform due diligence to ensure they are not violating someone else's copyright. IIRC big companies like Wal-Mart have already faced this issue (and, IIRC, paid a hefty sum in a class-action suit?). Just because th company is online and the media is T-shirts doesn't change the basic oncept. Unitl Congress creates some sort of safe harbour for physical printing, the court is right. Until then, sadly, the solution is take your business to small businesses that cannot provide a good income to contingency lawyers.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 12 Jul 2017 @ 8:27am

      Re: Nothing Different

      "If someone comes in to a photo printing shop and asks for copies of a photo (most famously, copying professional wedding photos) the printer must perform due diligence to ensure they are not violating someone else's copyright."

      True, but the "on the internet" portion changes the scale and workability. A local copy shop will usually be able to see the physical originals, see the name and address of the original copyright owner and do some work in physical contact with one of the tens or hundreds of people who come into their store. They will probably be aware of and have relationships with all the professional photographers in the area anyway. They *may* be able to say "oh, this looks like a professional photographer, can we have confirmation that you have permission before we work on this?" or even recognise elements that make it clear who the local originator is even if there's attempts made to obfuscate that.

      A company taking online submissions without human review from anywhere in the world cannot do this. Rather than a few hundred customers a week, they will deal with thousands per second. They also cannot introduce blanket human review without going out of business, so they have to depend on customers providing information and actioning when informed of mistakes/fraud. It's the scale that makes this problematic, not simple the "on the internet" part.

      "Until then, sadly, the solution is take your business to small businesses that cannot provide a good income to contingency lawyers."

      Sadly, you're right. The solution appears to not be "provide a method by which companies can confirm copyright status" nor "fix the law to account for the fact that no business with public content on the open internet can truly handle things the same way as a local store". It certainly doesn't seem to be "normalise protections for businesses that operate in multiple spaces".

      The solution is apparently "kill a useful service, provide a chilling effect to prevent new ones and encourage the public to break laws in ways that are less likely to be spotted".

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 12 Jul 2017 @ 7:58am

    Its starting to look like the Judiciary has decided that copyright is like obscene material, you'll know it when you see it.

    Had the artist sent a DMCA notice, that would have put Zazzle on notice to try and police for his content. Instead he waits and then sues claiming Zazzle has a duty to scan everything submitted to them against the copyright database & flag violators. I think this might be a form the the CSI effect where they assume because tech can always do anything, this is just something the tech can totally do if only they had bothered.

    Your copyright matters but sending a DMCA notice is to hard, but you can still sue for huge cash.
    Why would they bother to use the actual system?
    Why would they admit that scanning every image would require a new system be built or thousands of people who have no master database to work with?
    Why would they admit that they expect everyone else to bear the costs of protecting their copyright, but shouldn't be required to put forth any effort themselves?

    Unless there was a watermark across the image that said OMG THIS IS COPYRIGHTED!!! How could anyone know? Why is this such a hard concept to get the courts to grasp?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jul 2017 @ 9:04am

      Re:

      There are a few low hanging fruit ways to do this.
      Image metadata for one, as most pirates don't scrub it.
      Some sort of image database where, if the image meets certain criteria, the order is flagged.
      Also because they cross into meatspace Zazzle, even if the service is fully automated, they might actually still be liable as a sort of accessory to the infringement.

      Still the one at fault is the user. This is just a company spotting a nice fat payday and an enabling judge.

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 12 Jul 2017 @ 1:21pm

        Re: Re:

        You forgot to take something into account here: context. An image covered by copyright might be used as part of a parody that someone sends off to a printer through Zazzle. How can a simple image database know about that context and declare an image non-infringing?

        reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 12 Jul 2017 @ 2:38pm

          Re: Re: Re:

          There's also the fact that there is no detectable difference on Zazzle's end between a watermarked image that was illegally copied, and one that you had a license to copy.

          There is no requirement in any US law for such a license to be written. If a friend asks me over the phone for permission to print out a copy of something I wrote, and I say yes, then he has a license to print it out and such a copy is completely legal despite being indistinguishable in any way from an illegal copy.

          All the printer can do is make it part of their TOS that users only upload stuff they have licenses to or own the copyrights on. And Zazzle did that.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Jul 2017 @ 6:32pm

      Re:

      Unless there was a watermark across the image that said OMG THIS IS COPYRIGHTED!!! How could anyone know?

      Actually, with copyright being automatic now, practically everything is automatically copyrighted. So it's not about whether something is copyrighted (it probably is) but about licensing and permissions and assignments and so on and so on. The kinds of things lawyers get rich sorting out.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Jul 2017 @ 10:17am

    Abolish copyright.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Jul 2017 @ 10:16am

    Free Promotion for Zazzle and GYPI.

    reply to this | link to this | view in chronology ]


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