Amazon Algorithms Infringe Our Copyright, Williams-Sonoma Says
Williams-Sonoma (WSI) asked U.S. Magistrate Judge Alex Tse last week for permission to add copyright claims to its dispute with Amazon, which already includes claims related to trademarks plus design and utility patents.
March 24, 2020 at 10:30 PM
3 minute read
The original version of this story was published on Law.com
The original version of this report was published on the biweekly IP briefing Skilled in the Art.
There's a long-running debate in IP Land as to whether machines can "author" copyrighted works, be they rap lyrics, paintings or novels.
Williams-Sonoma and Amazon.com are on the cusp of a test case about whether intelligent machines can infringe copyrights.
Williams-Sonoma (WSI) asked U.S. Magistrate Judge Alex Tse last week for permission to add copyright claims to its dispute with Amazon, which already includes claims related to trademarks plus design and utility patents.
After a year of discovery, WSI's Orrick, Herrington & Sutcliffe lawyers say they've determined that Amazon isn't entitled to the DMCA safe harbor available to online service providers who play a passive role in posting user content.
Previously WSI had thought that third-party sellers were responsible for uploading infringing images of WSI products to Amazon's "fake Williams Sonoma storefront," as WSI calls it. But it turns out that Amazon creates an internal catalog of Williams-Sonoma product images, "then Amazon, via its algorithms, selects which of the images in its catalog to display on the product detail pages in the Amazon marketplace," WSI alleged in a motion Friday for leave to supplement its complaint.
"This editorial control, and Amazon's role in the selection and display of copyrighted images via its algorithms, constitutes the volition required for direct copyright infringement and renders Amazon ineligible for safe harbor protection under the DMCA," states the motion, which is signed by Orrick partner Diana Rutowski.
WSI notes that Amazon was granted safe harbor status in a 2004 case on the ground that it didn't preview products prior to listing, edit product descriptions, suggest prices, or otherwise involve itself in sales. Although the precise nature of the algorithms now used by Amazon are confidential and redacted from Friday's filing, WSI insists it's enough to meet the standard of "volitional conduct" established by Ninth Circuit case law.
"If an Amazon employee were composing these product pages from the submissions by third-party sellers, there is no doubt that Amazon would be liable for direct copyright infringement when that employee copied and displayed photographs in this unauthorized fashion," states WSI, which is also represented by Orrick partner Annette Hurst and others.
Amazon is represented by Mark Lemley and Daralyn Durie of Durie Tangri. We don't know Amazon's response yet, though Williams-Sonoma is offering a preview of coming attractions. WSI says Amazon opposes amending the complaint on the grounds that "1) the deadline to amend passed in June 2019, 2) WSI has known about its copyrighted photos on Amazon for some time."
I expect we'll be hearing a lot more from Amazon in the coming weeks.
➤➤ Get IP news and commentary straight to your inbox with Scott Graham's email briefing, Skilled in the Art. Learn more and sign up here.
|This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All
Pre-Internet High Court Ruling Hobbling Efforts to Keep Tech Giants from Using Below-Cost Pricing to Bury Rivals
6 minute read
Amazon's Audible Hit With Privacy Class Action Over Use of Tracking Pixels
Meet the Pacific Northwest Judges Who Rejected the Kroger-Albertsons Supermarket Merger
4 minute readLaw Firms Mentioned
Trending Stories
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250
