Copyright

by Mike Masnick


Filed Under:
copyright, dmca, injunction, mea culpa

Companies:
zazzle



Court Realizes It Totally Screwed Up An Injunction Against Zazzle For Copyright Infringement

from the oops dept

Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically). To add insult to injury, in November, the judge then issued a permanent injunction against Zazzle for this infringement.

However, it appears that no one is more troubled about this permanent injunction issued by Judge Stephen Wilson... than Judge Stephen Wilson.

In early February, Wilson released a new order reversing his earlier order and chastising himself for getting things wrong.

The Court finds that there is a “manifest showing” of the Court’s “failure to consider material facts presented to the Court” because the Court did not provide any justification for the permanent injunction.

Yes, that's the judge chastising himself for not providing the necessary justification for an injunction after finding Zazzle to not have safe harbors (some of the background here involves a question about which rules -- federal or local -- the court should be using to reconsider the earlier ruling, which isn't that interesting). Unfortunately, Wilson doesn't go back and revisit the DMCA safe harbors question -- this new ruling just focuses on why he was wrong to issue a permanent injunction after finding that the DMCA safe harbors didn't apply.

For that, the court notes (correctly, this time!) that under the Supreme Court's important MercExchange standard, courts should be careful about issuing injunctions for infringement, and that the plaintiffs need to show irreparable harm and that other remedies aren't more appropriate (and that an injunction won't cause greater harm to the public). Here, the plaintiff failed to do all of those -- and somehow the court missed it.

In addition, the court does note that it never even considered the question about whether the artwork that is displayed on Zazzle's website, but not printed on t-shirts, still gives Zazzle safe harbor protections -- and the injunction would have applied to those works too, even though they might have been protected under the DMCA:

Plaintiff’s proposed permanent injunction was ambiguous and went beyond the issues at trial, facts which the Court did not consider when it granted the initial motion for a permanent injunction. Before trial, the Court never decided whether Zazzle had a viable DMCA defense as to images only displayed on Zazzle’s website and never physically manufactured. Dkt. 81. Plaintiff withdrew its claims as to such “display-only” artworks prior to trial, so the issue was not tried. Dkt. 110 at 2:11-25. As such, it is unclear whether the injunction applies to both the manufacture and distribution of physical goods, or also to display of images on the Zazzle website. It is also unclear if Zazzle must take “reasonable” steps to address the display of images on its website as well as its manufacture of products. The Court did not consider these material facts in determining the scope of the permanent injunction; upon reviewing these facts, the proposed injunctions go beyond the issues at trial.

It's good that the court has realized its own mistakes and fixed them -- though it would be nice if it went further to the point of recognizing the problems of saying that by printing an image on a physical good the DMCA protections disappear.

But, really, reading this new ruling, you almost (almost) feel bad for Judge Wilson as he complains about Judge Wilson's failings in this case:

The Court recognizes that it failed to consider material facts in granting the permanent injunction in October 2017. The Court also recognizes that it provided no rationale for the permanent injunction, manifestly showing the failure to consider such facts. Upon considering those facts, the Court finds no basis for a permanent injunction in this matter.

Don't be too hard on yourself, Judge. Admitting your mistakes is the first step.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 21 Feb 2018 @ 3:44pm

    Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?

    Does the decision not stand? Is Zazzle completely off the hook, or is this "remediable" error requiring more input?

    Admitting that you left out key parts and portents is first step to YOUR correcting the record!

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

    • icon
      bhull242 (profile), 21 Feb 2018 @ 4:46pm

      Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?

      I thought that that was clear from the article: the injunction was vacated, but the earlier rulings are untouched. I don’t see any omissions here.

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

    • identicon
      Valkor, 21 Feb 2018 @ 5:02pm

      Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?

      First, learn what a subject line is for.

      Second, from the post:
      " Wilson released a new order reversing his earlier order " , which is talking about the vacated injunction.



      https://digitalcommons.law.scu.edu/historical/1600/

      Just for fun, here's a link to not one, but four documents related to the case. (Verdict, request for attorney fees, injunction, and damages reduction)

      Techdirt isn't a complete legal history of everything, so just calm down. If you didn't come out of the gate like a double barreled lunatic, we could start a constructive conversation about the events (including a jury trial) between the motion for summary judgement in the first Techdirt aticle and this one. We could ponder how in the world Zazzle ended up with a damages judgement of $350,000 when GYPI acknowledged in court that Zazzle complied readily with every takedown request provided. We could even discuss the philosophical difference between an automatically displayed pixel, an automatically printed pixel, and an automatically 3D printed squirt of plastic in a "Digital Millennium"
      Instead, you sound like a tool that's genuinely upset that he had to read and even think a little.

      Good day, sir.

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

    • identicon
      Anonymous Coward, 21 Feb 2018 @ 6:31pm

      Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?

      You had to actually read the order? Wow, you poor fucking baby!

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

    • identicon
      Anonymous Coward, 21 Feb 2018 @ 9:58pm

      Your shouts are fun!

      By all means - give us more! Don't stop! Indulge yourself! Spit it out! Don't let this kettle to boil over!

      Whatever it is you're mumbling about.

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

    • identicon
      Anonymous Coward, 22 Feb 2018 @ 2:14am

      Re: Well, bottom line me, Legal Expert! You don't even state that the injunction is VACATED! Had to read the stinkin' order myself! -- SO what's next?

      Is this an admission that you normally DON'T read the article before posting your dribble?

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 21 Feb 2018 @ 3:50pm

    "By printing an image on a physical good the DMCA protections disappear." -- I think that's still a true statement. Nothing you raised even disputes it.

    From my second close reading, all those who think I don't even read a first time.

    Now, if you'll just go back as the judge did and show your REASONING on the key finding, not just leap to assert that DMCA covers even physical goods, it'd be handy. 'Cause you state that the key finding is still in place, and so not much can change.

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

    • identicon
      Anonymous Coward, 21 Feb 2018 @ 4:11pm

      Re: "By printing an image on a physical good the DMCA protections disappear." -- I think that's still a true statement. Nothing you raised even disputes it.

      Oh, you misunderstand, people think you can't read, not that you don't try.

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

    • icon
      bhull242 (profile), 21 Feb 2018 @ 4:48pm

      Re: "By printing an image on a physical good the DMCA protections disappear." -- I think that's still a true statement. Nothing you raised even disputes it.

      “Not much can change”? Actually, there are many remedies to copyright infringement beyond injunctions.

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

    • icon
      Stephen T. Stone (profile), 21 Feb 2018 @ 5:16pm

      Re:

      From my second close reading, all those who think I don't even read a first time.

      …you actually read things?

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

  • icon
    That One Guy (profile), 21 Feb 2018 @ 6:13pm

    Credit where it's due

    Admitting that you screwed up is hard.

    Admitting that you as a judge screwed up takes that up a few levels of difficulty.

    As such he's to be commended for not only realizing but publicly admitting that he got this wrong, even if he could have gone a bit farther.

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

  • icon
    That Anonymous Coward (profile), 21 Feb 2018 @ 8:23pm

    A Judge admitted they made a mistake... brb I gotta go play powerball or hit up a church to repent before the Apocalypse.

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

  • identicon
    Anonymous Coward, 21 Feb 2018 @ 9:25pm

    "Last year we wrote about a bizarre and troubling DMCA case involving the print-on-demand company Zazzle, in which the judge in the district court bizarrely and wrongly claimed that Zazzle lost its DMCA safe harbors because the allegedly infringing works were printed on a t-shirt, rather than remaining digitally (even though it was the end user using the infringing work, and Zazzle's system just processed it automatically)."

    I really don't see why that's wrong. I can see a good argument for changing the law, but right now the DMCA applies to "transitory digital network communications", "system caching", "information residing on systems or networks at direction of users", and "information location tools". It does *not* apply to physical objects like t-shirts. If there's a double standard, it's baked into the law.

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

  • identicon
    Anonymous Coward, 22 Feb 2018 @ 1:37am

    'Don't be too hard on yourself, Judge. Admitting your mistakes is the first step'

    perhaps instead of thinking, as 99.9% of judges do, that whatever they think/say is right that knowing and complying with the law is a better way to go? what about the damage that's been done to Zazzle? will that be undone by this judges incompetence? and what about amending the 'Safe Harbor' part? totally ignored, still!!

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

  • identicon
    Snap Shot, 22 Feb 2018 @ 1:17pm

    My experience with Zazzle

    For years i had posted personal photos and paintings on Zazzle. One was a photo of pelicans flying over a beach in San Diego. As part of the description I had added i commented that the photo was take with a 35mm compact Leica camera.

    After TEN YEARS, I received an email from Zazzle stating they had removed the photo because of violation of Terms Of Service agreement.

    Puzzled, I responded with a query as to the specifics as to the so-called violation. The response was it related to a complaint from a (named) person working at Leica complaining that I had used the word Leica in describing my phtoto without their permission.

    This was on so many levels that in disgust I removed all my images from their site, and also vowed I would never buy another Leica,product.

    I cannot abide idiotic nonsense dressed up in legal trappings.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.