Online Marketplaces That Sell Products Directly to Consumers May Not Qualify for DMCA Protection

Author: Naresh Kilaru

The U.S. District Court for the Southern District of California recently decided that it could not hold as a matter of law that CafePress, an e-commerce vendor that allows individuals to upload images of their artwork and designs for printing on items such as shirts, bags, and mugs, was entitled to DMCA safe-harbor protection. See Gardner v. CafePress, Inc., No. 3:13-cv-1108-GPC-JMA (S.D. Cal. Feb. 26, 2014).

While the court found that CafePress was similar in many respects to online marketplaces like Amazon and eBay, it noted several important differences. Most significantly, CafePress went beyond merely facilitating the sale of products between users of the website and sold products directly to online shoppers through its own marketplace site. In addition to determining which images would be utilized for its marketplace site, CafePress had the ability to modify the images and set the retail prices of the products. The court held these activities created sufficient factual issues as to whether CafePress qualified for DMCA protection and denied CafePress’s motion for summary judgment on this issue.

The case is a good reminder that whether any particular site is entitled to DMCA safe-harbor protection is a highly fact-specific inquiry and that such protection may not be available where a site is actively involved in the sale of products as opposed to merely facilitating the sales of products between users.

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