Disclosure: I used to be an professional witness for RedBubble on this case (and one other case) and submitted some reviews relating to this case much earlier within the course of, although I didn’t testify at this trial. I had nothing to do with this trial aside from attending it as an showing interest observer, involved about litigation involving content material moderation. As you possibly can see, nonetheless, my opinions on this stay equivalent to my opinions on content material moderation going again principally eternally…
There’s been a whole lot of discuss these days about “repealing” or “reforming” Section 230. We’ve defined at nice prolonged why this may be a mistake and would result in a ton of frivolous litigation. Section 230 co-author Senator Ron Wyden has referred to this as making a state of affairs what place web site operators would face “death by ten thousand duck-bites.” Professor Eric Goldman has defined the procedural benefits of Section 230 in that it helps eliminate these circumstances extra rapidly. And whereas some (together with myself) have identified that the first Amendment would nonetheless defend most claims, with out the procedural advantages of Section 230, we’d nonetheless see a ridiculous variety of nuisance lawsuits through which firms must defend every content material moderation resolution. This can be made considerably worse if the legislation modifications in a fashion proposed by people like legislation professor Danielle Citron, to require web sites to point out that their content material moderation practices are “reasonable,” which might require costly litigation to find out.
The factor is: we’ve got an space what place we are able to truly see this in observe. There is one thing of a loophole inside Section 230: trademark legislation. From the start, Section 230(e)(2) has excluded mental property legislation. For copyright, that hole was stuffed (not significantly well) by the notice-and-takedown provisions of the DMCA Section 512. But trademark has no official middleman protections in US legislation. Experts like Mark Lemley have lengthy advocated for harmonizing the varied middleman legal guidelines in order that they’re all constant. Many folks had thought that maybe the courts had settled the concern with reference to trademark within the notorious Tiffany case towards eBay, through which the courts mentioned that eBay shouldn’t be anticipated to be excellent, and so long as it has some type of program to take care of counterfeits, then it is no longer liable for counterfeits on its website.
However, final summer season, a federal decide in LA successfully re-opened the concern in a case introduced by the holding business that controls the “Brandy Melville” clothes kind towards print-on-demand web site RedBubble. Brandy Melville argued that RedBubble was violating its logos (and copyrights) in printing a few of its designs, and whereas the decide did toss out much of the case, he allowed a few parts to move forward to a jury trial. The decide mentioned that the Tiffany v. eBay rule didn’t particularly apply — since that was a case of customers promoting physical merchandise, whereas with RedBubble, the corporate would take designs uploaded by customers, and move them on to varied print outlets for the precise printing. So the open query, in idea, was whether or not or not that deeper involvement opened itself as much as contributory legal responsibility (the decide accurately dismissed the claims about direct infringement). There had been a couple of different oddities in regards to the decide’s ruling as Eric Goldman famous on the time:
However, the Ohio State ruling didn’t tackle contributory trademark infringement, and this courtroom sends that challenge to the jury. Unlike Tiffany v. eBay, which intertwined professional used resales of Tiffany objects, the courtroom says “Redbubble is not burdened by the need to parse valid uses of Brandy Melville’s trademarks from invalid ones, as Brandy Melville has made clear to Redbubble that there are no legitimate sales of Brandy Melville products through its site. As such, all uses of Brandy Melville’s marks that appear on Redbubble’s website are presumptively infringing.” I doubt the courtroom means this assertion so baldly, because it disregards parodies, nominative makes use of, and different professional actions. Similarly, the plaintiff complained that RedBubble hasn’t disabled inner shopper key phrase searches for its logos, however that doesn’t look like a proper unique to the trademark proprietor in gentle of MTM v. Amazon.
In observe, nonetheless, just about the whole trial revolved round whether or not or not RedBubble “did enough” in its content material moderation. Over and over once more, the legal professionals for Brandy Melville saved making an attempt to insist that any failures by RedBubble’s content material moderation was proof that it didn’t do sufficient. Indeed, within the closing arguments, even after it had been identified that RedBubble spent hundreds of thousands of money per yr on its content material moderation efforts, and had eliminated each instance that Brandy Melville’s legal professionals had despatched them inside a day or two, the lawyer straight up requested the jury “don’t you think RedBubble could have done more?”
There had been quite a few different oddities that got here out in the course of the trial. The trial was explicitly about simply three particular trademark designs that Brandy Melville held — two of which by no means truly seem on the entrance of t-shirts or different merchandise (the corporate mentioned it solely used them on clothes grasp tags and on retailer indicators), and one which the corporate registered simply weeks earlier than suing. Incredibly, Brandy Melville placed on the stand a supervisor of a few of their shops who admitted two unbelievable issues: (1) that she was unable to inform which merchandise on RedBubble had been professional and which had been infringing (so how the hell might they anticipate RedBubble to simply know?!?) and (2) that in a few years of working and managing Brandy Melville shops, she couldn’t recall a single time that anybody ever introduced in a RedBubble product to “return” it. That latter level actually caught with me as a result of it highlighted the close to whole lack of confusion, which is a key level in trademark infringement. There must be confusion.
Another oddity: Brandy Melville saved specializing in the truth that RedBubble refused to dam all tags that included “Brandy Melville” or any search outcomes on “Brandy Melville.” But as Goldman famous above (and the decide appeared to overlook), that’s not a proper that trademark legislation offers a trademark holder. RedBubble identified that it truly used the tagging system as a part of its content material moderation efforts — and that letting customers tag stuff “Brandy Melville” made it simpler for its content material moderation crew to seek out and evaluation these objects to see in the event that they infringed. Also, whereas it solely got here up exceptionally briefly, one of many merchandise that was on RedBubble’s website was a t-shirt that learn: “Fuck Brandy Melville,” which is clearly commentary/parody — and never one thing anybody would assume got here from Brandy Melville itself. Brandy Melville can’t abuse trademark legislation to say any and all use of the time period should be blocked. That’s not how trademark legislation works.
For its half, RedBubble spent loads of time describing the intense lengths it goes to attempt to stop infringing works on its website, together with making use of assorted applied sciences, having a big crew of human reviewers, and dealing intently with plenty of manufacturers to higher perceive what’s and what’s not infringing. But, once more, the plaintiff’s centered on “is it enough.”
And, as a result of they saved specializing in a only a few examples what place Brandy Melville logos or different designs had been discovered on RedBubble, that was proof that, no, the corporate didn’t do sufficient. And… the jury purchased it. At the tip of the three day trial, the jury said that RedBubble was liable as a contributory infringer, together with not only for trademark infringing, however for counterfeiting. This was significantly weird as a result of for there to be counterfeiting, there must be an precise copying of a product bought by the trademark holder. And, as already famous, two out of the three designs had been by no means truly used on the entrance of merchandise by Brandy Melville, and as for the third design (the “LA Lightning” mark — which, looks as if it might have its own trademark points, contemplating it was yanked from an unbiased skilled basketball crew), they by no means appeared to point out actual copies of it on any RedBubble merchandise both. Instead, considerably bizarrely, Brandy Melville centered on very distinct and totally different variations on the emblem that appeared on RedBubble merchandise — together with a transparent parody one for University of Florida college students. And the counterfeiting challenge was key to Brandy Melville’s case, as a result of it could permit them to ask for statutory damages, working up into a number of hundreds of thousands of money.
And it is a clear challenge with litigation round content material moderation: the jury was primed again and again to imagine that any mistake makes the corporate liable. Brandy Melville’s legal professionals simply saved displaying designs that point out Brandy Melville or seemed just like Brandy Melville (continuously for merchandise that Brandy Melville had no trademark over) after which simply saved harping on the truth that Brandy Melville didn’t approve any of this, and clearly RedBubble was a “counterfeiting” website. In the tip, the jury awarded $520,000 to Brandy Melville ($300okay “counterfeiting” for the “Brandy Melville” mark, $200okay for “counterfeiting” the LA Lightning mark, after which $20okay for trademark infringement.)
At the shut of the case, RedBubble instantly sought a judgment as a matter of law to successfully attempt to take the case out of the jury’s hands (arguing that Brandy Melville did not current sufficient proof and the decide might rule on the matter instantly while not having the factual deliberation of the jury). This week the decide did the truth is rule that the $300k for contributory counterfeiting on the Brandy Melville mark was improper, bouncing the award all the way down to $220,000.
As the decide famous, the truth that RedBubble’s merchandise weren’t the identical as something Brandy Melville made relating to these logos, meant that there couldn’t be a professional counterfeiting declare for that mark:
Here, Plaintiff did not current proof of merchandise that bore a spurious Brandy Melville Heart Mark and had been provided on the market on Redbubble.com that had been remotely just like merchandise that Plaintiff provided on the market, not to mention “stich-for-stitch copies” of Plaintiff’s merchandise. The Court subsequently concludes that the proof offered at trial permits just one affordable conclusion–Plaintiff failed to ascertain that Redbubble is answerable for contributory counterfeiting of the Brandy Melville Heart Mark.
The finish result’s means under the numerous hundreds of thousands of money Brandy Melville was looking for, although even the small quantity it bought appears ridiculous based mostly on an understanding of what truly occurred.
But, there’s a bigger level right here: this case was an unlucky alternate actuality universe view of what’s going to occur with out Section 230 or if we moved to a Citron-style “reasonable” commonplace. You’d get a ton of litigation through which everybody was simply going backwards and forwards arguing over what the “right” stage of content material moderation is, and arguing that any errors had been proof that “not enough” was being finished by the businesses. That’s a catastrophe state of affairs, one through which any easy mistake (even what place there’s maybe sturdy proof that no mistake was truly made) is topic to the whims of a jury (or a decide) and an costly, time-consuming trial. I acknowledge that legislation professors may not care that much about all of this wasteful litigation, however in the true world it issues a ton. This sort of factor can, and can, kill off smaller firms, even if they can succeed in court. And that doesn’t assist anybody, besides presumably some trial legal professionals who can threaten and shake down tons of Internet sites.
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