permission and then sold items bearing copies of the plaintiff’s works through CafePress’s web
site and other web sites. CafePress received revenue from these infringing sales. CafePress also
purchased advertisements which displayed copies of the plaintiff’s works and generated revenue
from users who clicked on those advertisements. The plaintiff brought claims for direct and
vicarious copyright liability against CafePress and CafePress sought summary judgment in its
favor on liability.^275
With respect to direct liability, the plaintiff argued that the Supreme Court’s decision in
Aereo militated against a volitional conduct requirement for direct liability. The district court
rejected this argument, noting that the Supreme Court expressly decided not to address the
volitional conduct issue, which therefore left undisturbed the Ninth Circuit’s decision in Fox
Broadcasting Co. v. Dish Network L.L.C.,^276 which expressly held that volitional conduct on the
part of the defendant is one of three elements required to establish a prima facie case of direct
infringement. Here the court found volitional conduct on the part of CafePress sufficient for
direct liability in the form of the production and sale of allegedly infringing items bearing the
plaintiff’s copyrighted images. CafePress did not contend that its production facility and
shipping processes were completely automated and thus devoid of human employees engaging in
volitional conduct. Rather, CafePress’s employees responded to customer requests to purchase
items by operating the machinery used to create the allegedly infringing items.^277
With respect to vicarious liability, the court found direct financial benefit from the
infringing activity on the part of CafePress because it was undisputed that a certain number of
CafePress customers saw ads bearing images of the plaintiff’s copyrighted works, clicked
through those ads, and generated revenue for CafePress, and that some CafePress customers
bought items bearing images of the plaintiff’s copyrighted works. The court also found the
evidence showed that CafePress had active control over at least some of the allegedly infringing
items during the process in which CafePress produced and then shipped those items to
customers.^278 “While CafePress’s actions in response to allegedly infringing uploads may be
similar to Amazon and eBay where it is not actively involved and can only engage in after-the-
fact removal and access blocking, CafePress’s production of allegedly infringing items at its
production facility does appear to be ‘purposeful conduct’ such that CafePress has the ‘right and
ability to control.’”^279 Accordingly, the court denied CafePress’s motion for summary judgment
in its favor with respect to liability for direct and vicarious infringement.^280
(^275) Id. at 1-4. The plaintiff did not assert claims for contributory liability.
(^276) 747 F.3d 1060 (9th Cir. 2014).
(^277) CafePress, 2014 U.S. Dist. LEXIS 168328 at 8-12.
(^278) Id. at 13-16.
(^279) Id. at 16.
(^280) Id. at *18.