Corbis Corp. v. Amazon.Com, Inc., CV03-1415L.
| Decision Date | 21 December 2004 |
| Docket Number | No. CV03-1415L.,CV03-1415L. |
| Citation | 351 F.Supp.2d 1090 |
| Parties | CORBIS CORPORATION, a Washington corporation, Plaintiff, v. AMAZON.COM, INC., a Delaware corporation, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Brett Wade Sommermeyer, Gordon & Polscer LLP, Seattle, WA, Dan J. Donlan, Mary K. Schug, Richard Carl Siefert, William Mickel Krause, Claire L. Keeley, Lane Powell Spears Lubersky, Seattle, WA, for Plaintiffs.
Charles Christian Sipos, Elizabeth L. McDougall-Tural, Breena Michelle Roos, Perkins Coie, Dale L. Kingman, David Joseph Corey, John Clark Gibson, Kingman Peabody Pierson & Fitzharris, Seattle, WA, Kenneth B. Wilson, Perkins Coie, San Francisco, CA, for Defendants.
This matter comes before the Court on cross motions for summary judgment and partial summary judgment filed by plaintiff, Corbis Corporation ("Corbis") and defendant, Amazon.com, Inc. ("Amazon"). For the reasons set forth in this Order, the Court finds that Amazon is protected from liability for copyright infringement occurring on its third party vendor platform, zShops.com. In addition, the Court finds that it lacks subject matter jurisdiction over infringement claims regarding photographs for which Corbis has not obtained copyright registration. Finally, the Court finds that Corbis's federal antitrust and state law claims fail as a matter of law.
In accord with these findings, the Court:
1. Grants Amazon's Motion for Summary Judgment Under the Digital Millennium Copyright Act (Dkt. # 132) ("Def.'s DMCA Mot.");
2. Denies Corbis's Motion for Partial Summary Judgment Regarding § 512(c) "Safe Harbor" Qualification under the DMCA (Dkt. # 145) ("Pl.'s 512(c) Mot.");
3. Denies Corbis's Motion for Partial Summary Judgment Against Amazon Precluding Application of DMCA for Lack of Compliance with 17 U.S.C. § 512(i) (Dkt. # 146) ("Pl.'s § 512(i) Mot.");
4. Grants Corbis's Motion for Partial Summary Judgment Against Amazon as to DMCA Eligibility for Its IMDb Platform (Dkt. # 144) ("Pl.'s IMDb Mot.");
5. Grants Amazon's Motion for Partial Summary Judgment on Lack of Copyright Registration (Dkt. # 153) ("Def.'s Copyright Reg. Mot.");
6. Grants Amazon's Motion for Partial Summary Judgment Denying Corbis's Direct Copyright Infringement Claims (Dkt. # 151) ("Def.'s Direct Copyright Inf. Mot.");
7. Denies Corbis's Motion for Partial Summary Judgment Against Amazon for Direct and Vicarious Copyright Liability (Dkt. # 147) ( );
8. Grants Amazon's Motion for Partial Summary Judgment on Plaintiff's Trademark and State Law Claims (Dkt. # 132) ("Def.'s Trademark and State Law Mot.");
9. Denies Amazon's Motion for Partial Summary Judgment on Copyright and Copyright Misuse (Dkt. # 151) ("Def.'s Mot. for Partial Summ. J. on Copyrights and Copyright Misuse");
10. Denies Amazon's Motion for Partial Summary Judgment on Plaintiff's Actual Damages (Dkt. # 163); and
11. Grants Amazon's Motion for Partial Summary Judgment on Plaintiff's Claim and Damages for Tortious Interference with Business Relationships (Dkt. # 105).
At the end of the day, Corbis is left with two remaining claims of direct copyright infringement against Amazon based on allegations that Amazon displayed on its IMDb.com website a photograph of Erika Christensen in which Corbis claims copyright interests under Copyright Registration Nos. VA 1-181-966 and VA 1-207-124.
On June 30, 2003, Corbis filed suit against Amazon and 15 other defendants (the "vendor defendants"). Corbis alleges it holds copyright interests in two photographs that Amazon placed on the website IMDb.com and in hundreds of photographs that were being sold by the vendor defendants on Amazon's website. Because Corbis did not grant permission to use the photos, it claims that Amazon directly and vicariously infringed Corbis's copyright interests in violation of 17 U.S.C. §§ 106 & 501 (the "Copyright Act"), engaged in unfair competition in violation of 15 U.S.C. § 1125(a) (the "Lanham Act") and R.C.W. 19.86.020 et seq. (the "Consumer Protection Act"), diluted Corbis's trademarks in violation of 15 U.S.C. § 1125(c) (the "Trademark Act"), and tortiously interfered with Corbis's business relations.
As of September, 2004, Corbis had reached a resolution with each of the vendor defendants, leaving Amazon as the sole remaining defendant. Amazon, for its part, denies the allegations and asserts, as an affirmative defense, that it is immune from liability for copyright infringement under Title II of the Digital Millennium Copyright Act ("DMCA"), 15 U.S.C. § 512, et seq. In addition, Amazon has filed a counterclaim for declaratory relief.
Amazon is a company specializing in electronic commerce. It is most widely known for selling books over the Internet at its website, Amazon.com. The Amazon.com website also hosts several third party vendor platforms, including a platform entitled "zShops."1 Amazon launched the zShops platform in the fall of 1995. The zShops platform allows individuals and retailers (referred to as "vendors") to showcase their products and sell them directly to online consumers. Amazon, however, does not sell any of its own inventory on the zShops platform.
To sell on zShops, a vendor creates a web page on the zShops platform that includes information regarding the product being sold. These web pages are referred to as "listings," and are created by using tools and forms provided by Amazon. The forms allow the vendor to describe the product, list the price, and provide an image of the product. A vendor can include a product image in the listing in one of two ways. The vendor either creates a link to an image stored on the vendor's computer or server, or uploads an image to one of Amazon.com's servers for display in the listing. Amazon does not actively participate or supervise the uploading or linking of images, nor does Amazon preview the images before the link is created or the upload completed.
Although vendors may accept any variety of payment for their products, if buyers pay by credit, Amazon requires vendors to use its services for processing credit card transactions. Amazon describes its credit card processing service as merely facilitating the monetary exchange between the online buyer and vendor and asserts that it does not conduct the sale of the products offered by the vendors. If the product is paid for by other means, Amazon has no involvement in the transaction.
Vendors must register with Amazon before they list items on zShops. Amazon charges a fee of $39.99 to all vendors, which allows a vendor to use the zShops platform and Amazon's credit card processing services. Vendors also pay Amazon a percentage of the price of any products sold. The percentage ranges from 2.5% to 5%, depending on the price of the item.
As part of the registration, vendors must also enter into a Participation Agreement, which states that all vendors are bound by its terms as well as the terms set forth in all policies and guidelines for the zShops site. The Participation Agreement prohibits vendors from listing or linking to any item that
(a) infringes any third-party intellectual property rights (including copyrights, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); ...; or (c) is counterfeited, illegal, stolen, or fraudulent.
Dkt. # 134, Decl. of Eric Orpet in Supp. of Def.'s Mots. for Summ. J. ("Orpet Decl.") at ¶ 29.
In addition, vendors are required to abide by the "Community Rules" set forth in the "Help Section" of the Amazon.com site. The Community Rules state that:
Copies, dubs, duplicates, or transfers of books, music, videos, television programs, radio programs, concerts, DVDs, software, etc., are prohibited. Recopied media infringe upon copyrights and trademarks and are illegal to sell. Just as you cannot sell a photocopied book without the author's permission, you cannot sell copies or duplicates of videos, music, video games, software, photos, or any copyrighted material without permission of the copyright holder.
Id. at 39a. The Community Rules also make reference to, and state that they are incorporated in, the Participation Agreement. See id. at 38.
In more than one section of the Participation Agreement, Amazon asserts the right to remove listings and terminate services for violations of either the Participation Agreement or Amazon's policies. For example, the Participation Agreement states that:
Amazon.com has the right, but not the obligation, to monitor any activity and content associated with this site. Amazon.com may investigate any reported violation of its policies or complaints and take any action that it deems appropriate, Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the [Amazon.com site], including listings and bids. Amazon.com reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
Id. at ¶¶ 20-21, p. 34. The Participation Agreement contains a blanket reservation of Amazon's right, "in its sole discretion ... to terminate this Participation Agreement, access to the [Amazon.com site] or the [auction or selling services], or any current auctions or fixed price sales immediately without notice for any reason." Id. at ¶ 22, p. 36.
Amazon has established a designated agent responsible for receiving claims of infringement of intellectual property rights. See id. at ¶ 24. Contact information for the agent has been provided to the Copyright Office and is available on Amazon's website, including on the zShops platform.
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