Second Stab at Amazon Infringement Claim Due to Associates' Actions Suffers Same Fate

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By David McAuley

An amended complaint alleging that Inc. was liable for copyright infringements purportedly committed by its network of advertising “associates” because it provided the associates with “tools, widgets, and other items” enabling them to link to the Amazon website still failed to allege sufficient facts to support either direct or vicarious infringement liability on Amazon's part, the U.S. District Court for the Western District of Washington ruled Feb. 26 (Routt v. Inc., W.D. Wash., No. 2:12-cv-01307-JLR, 2/26/13).

“The problem in this case is that Ms. Routt has not alleged enough facts to establish that Amazon can be held liable for the infringement of its Associates,” the court said.

Judge James L. Robart, who dismissed the plaintiff's original complaint in November, dismissed her amended complaint for the same reasons.

Amazon Associates Program

By contract, Amazon's associates may advertise its products on their websites, and they are compensated by the company if a buyer clicks through to make the purchase on the Amazon website.

The plaintiff in this case brought copyright infringement claims against Amazon when a number of its associates allegedly copied some of her copyrighted photographs onto their websites. She argued that Amazon was both directly and indirectly liable for the group's infringements.

The court originally dismissed the action because it determined that vicarious liability required some agency relationship whereby Amazon exercised a degree of control over the associates. It said the complaint did not sufficiently assert such a relationship through the contractual associates program.

Complaint's Second Take

The amended complaint differed from the original by pointing out that the plaintiff notified Amazon of the infringement but it did nothing, and by incorporating language from the Amazon associates agreement along with attached documents elaborating on the agreement. It also added factual allegations surrounding infringement by one associate in particular, an entity named “agcku,” to whom Amazon purportedly gave the programs and tools necessary to set up a linking website.

The amended complaint specifically stated, “Amazon is aware of the multiple websites operated by “agcku” and has acted in concert with “agcku” to establish and operate these websites.”

“None of these differences justifies a different result on this second motion to dismiss,” the court said. It pointed out that it had considered the associates program contract in the first go-round.

And as for the new factual pleading regarding “agcku,” the court said it was simply a more concrete example of what was alleged before. But, it said, the new pleading suffered from the same infirmity as the more general pleading--it provided no new factual information to show that Amazon could be held vicariously liable.

Regarding direct liability, the court said the allegations were “threadbare [and] conclusory,” not enough to survive a motion to dismiss.

Ambika K. Doran, James C. Grant, and John Goldmark, of Davis Wright Tremaine, Seattle, represented Amazon. Philip P. Mann, Seattle, represented the plaintiff.

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