Wednesday, April 16, 2014

DMCA Safe Harbor concept tested in lawsuit against CafePress

There is another important case that tests the way DMCA Safe Harbor works and that might recall the lack of its use in the Righthaven troll matter a couple years ago.  This case is Gardner v. CafePress, as explained by Electronic Frontier Foundation in an article by Parker Higgins and Corynne McSherry.  The article in turn links to an amicus brief. 
CafePress lets users set up online stores to sell goods.  Apparently a user included some wildlife photography by Steven Gardner, who sued and claims that CafePress does not enjoy DMCA SafeHarbor protection for two reasons.  The plaintiff claims that the defendant is not a true service provider because it apparently does some of its own publishing or business on the site. (A blogger who just does his own postings is not a service provider, but if her site allows others to post without prior review, I would think that could qualify as a service provider; that point came up in some of the cases involving Righthaven.)  It also claims that its stripping of metadata from photographs, common done in social media (including Facebook) presumably to protect the privacy of posters, amounts to non-compliance with the expectation of using all readily available standard technical means in allowing infringing material to be indemnified.  Apparently if the metadata were left on, it would be easier for a potential plaintiff to find it.


EFF argues that these points of law should have been resolved by the judge in a summary judgment and that the case should not go to trial.    
Picture: an example of metadata, source is my own train set  

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