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08.21.20

Claims asserting Amazon’s algorithms commit direct copyright infringement survive Motion to Dismiss

BY Tracy Ickes

A federal district court in the Northern District of California is allowing Williams-Sonoma to pursue claims against Amazon.com, Inc. for direct copyright infringement, even though the copyrighted images appearing on Amazon’s marketplace were selected and posted by Amazon’s algorithms without any decision making from Amazon employees. Williams-Sonoma, Inc. v. Amazon.com, Inc., No. 18-cv-07548-AGT (N.D. Cal. Aug. 17, 2020).

Williams-Sonoma alleges that sellers on Amazon submit proposed images and language for a “product detail page” (PDD), which Amazon forces all sellers of the same product to share. Sellers cannot choose what appears on the PDD. Instead, Amazon uses multiple algorithms to evaluate and select the seller-contributed content for the PDD. Williams-Sonoma alleges that Amazon’s algorithms selected copyrighted images of its Peppermint Bark product for display on a PDD, and Williams-Sonoma filed a claim for direct copyright infringement.

Amazon moved to dismiss the claim on the basis that Williams-Sonoma failed to allege “volitional conduct” necessary to state a claim for direct copyright infringement, but the court denied the motion. The district court explained that direct liability requires that a website owner be actively involved in the infringement and exercise some control beyond general operation of its website, something more than automatic copying, storage, and transmission of copyrighted materials uploaded by others.

The district court held that Williams-Sonoma had alleged volitional conduct. Allegations in the complaint that were key to the court’s decision include:

  • Amazon’s algorithm makes its selection based on what image is most likely to make a sale, regardless of rights claimed (or not) by the seller uploading the content.
  • Amazon’s multi-factor selection process is akin to content moderation efforts.
  • Amazon itself actually reproduces and displays the images. While sellers upload images, sellers do not control what ultimately appears on the “product detail page.”

The ruling merely denies a motion to dismiss and does not determine the merits of the claim. Nonetheless, it provides useful insight into potential liability based on the way algorithms are used to select and publish potentially copyrighted images.

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Tracy Ickes

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