The Ninth Circuit recently granted internet giant Amazon.com’s motion to dismiss a claim of vicarious copyright infringement arising from the actions of certain participants in the company’sAmazon Associates Program.
Through the program, operators of independent websites advertise Amazon products and earn advertising fees for purchases made by end-users who click through to Amazon.com. In Routt v. Amazon.com, Inc., plaintiff Sandy Routt, owner of an online gift-store, alleged that various participants in the Amazon Associates program used her copyrighted photographs on their websites without her permission. No. 2:12-cv-01307-JLR, 2014 BL 242942 (9th Cir. Aug. 29, 2014).
In a non-precedential opinion, the court applied the test for vicarious copyright infringement it set forth in Perfect 10, Inc. v. Visa Int’l Serv., Ass’n, 494 F.3d 788, 802 (9th Cir. 2007). Under that test, “a plaintiff must allege that the defendant has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity.” Vicarious liability requires a finding that the defendant and the infringer have an “apparent or actual partnership, have the authority to bind one another in transactions with third parties, or exercise joint-ownership or control over the infringing product.”
Although Amazon and its associates in the program operate under an agreement in which the associates agree to refrain from infringement, and Amazon has the right to “monitor, crawl, and otherwise investigat[e]” an associate’s website, Amazon does not have the ability to supervise and control the infringement, the court noted. According to the Ninth Circuit, a defendant has control over a third party’s infringing conduct if the defendant can directly put an end to the conduct. In this case, even if Amazon monitors and terminates the account of an infringer, the termination would not necessarily end the associate’s copyright infringement. Despite the termination, the associate could still continue to “reproduce, display, and distribute its infringing copies of Routt’s images.” Moreover, the court stressed that the plaintiff failed to allege any facts establishing a partnership, or that the associates had the inherent authority to bind Amazon. The Ninth Circuit accordingly affirmed the district court’s dismissal of the plaintiff’s complaint for failure to state a claim of vicarious liability.