Amazon.Com Avoids Vicarious Liability For Copyright Infringement By Amazon Associates

The Ninth Circuit recently granted internet giant Amazon.com's motion to dismiss a claim of vicarious copyright infringement arising from the actions of certain participants in the company's Amazon Associates Program.

Through the program, operators of independent websites advertise Amazon products and earn advertising fees for purchases made by end-users who click through to Amazon.com. In Routt v. Amazon.com, Inc., plaintiff Sandy Routt, owner of an online gift-store, alleged that various participants in the Amazon Associates program used her copyrighted photographs on their websites without her permission. No. 2:12-cv-01307-JLR, 2014 BL 242942 (9th Cir. Aug. 29, 2014).

In a non-precedential opinion, the court applied the test for vicarious copyright infringement it set forth in Perfect 10, Inc. v. Visa Int'l Serv., Ass'n, 494 F.3d 788, 802 (9th Cir. 2007). Under that test, "a plaintiff must allege that the defendant has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity." Vicarious liability requires a finding that the defendant and the infringer have an "apparent or actual partnership, have the authority to bind one another in transactions with third parties, or exercise joint-ownership or control over the infringing product."

Although Amazon and its associates in the program operate under an agreement in which the associates agree to refrain from infringement, and Amazon has the right to "monitor, crawl...