On August 29, 2014, the Ninth Circuit held that Amazon.com, Inc. ("Amazon") could not be held vicariously liable for the conduct of certain participants in its affiliate-marketing program.
The plaintiff, Sandy Routt, an artist and designer of jewelry, apparel and collectibles, alleged that certain participants of Amazon's affiliate marketing program used her copyrighted photographs on their websites without her consent. She sued Amazon for vicarious copyright infringement and for false designation of origin.
In order to successfully sue for vicarious copyright infringement, Routt had to allege that Amazon had (1) the right and ability to supervise the infringing content; and (2) a direct financial interest in the financial activity. Routt alleged that Amazon's operating agreement with its affiliates prohibits copyright infringement and gives Amazon the power to monitor participants' websites and terminate noncompliant participants. She further argued that this operating agreement gave Amazon the ability to affect the conduct of the participants so Amazon should be vicariously liable for the participant's conduct.
The Court held that, even if Amazon may terminate the account of any participant who has infringed on another copyright, that termination would not put an end to the participants' infringement. The plaintiff failed to show that Amazon exercises any direct control over the participants' activities.
Similarly, Amazon does not have joint ownership or control over the participants' infringing websites and the operating agreement expressly disclaims the existence of any partnership or agency. Therefore, the plaintiff failed to state a claim for vicarious liability under the Lanham Act.
The Ninth Circuit affirmed the district court's dismissal of the first Amended Complaint against Amazon.
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