In a recent decision by the United States District Court for the Eastern District of Pennsylvania (ED Pa.), the court dismissed an individual author’s suit against Amazon for hosting an infringing copy of his copyrighted work. Parker v. Paypal, Inc., Civil Action No. 16-4786, 2017 WL 3508759 (E.D. Pa. Aug. 16, 2017).
I. THE FACTS
Plaintiff, Gordon Roy Parker, wrote a book entitled “Outfoxing the Foxes: How to Seduce the Women of Your Dreams,” for which he registered his copyright in 1998. In October 2015, he learned that his book was being sold online as part of an “anthology of books and articles written by and for pickup artists.” Id. at *2. He requested that the work be removed from the site – which appears to have occurred, at least for a time.
Several months later, in December 2015, he learned that sales of the anthology (including his copyrighted work) had resumed. In addition to seeking a take down of the book from this site, and to restricting the site’s access to its PayPal account, Parker notified Amazon.com, Inc. and Amazon Web Services, Inc. (collectively, “Amazon”) regarding Amazon’s hosting of the infringing work. (The Court’s opinion does not discuss any response by Amazon at this time.)
Parker alleges in his complaint that despite providing such notice to Amazon, the infringing work was still being hosted through Amazon’s cloud servers at least as late as Spring 2016.
In a May 2016 email, Parker told Jeff Bezos (CEO of Amazon) about the infringement and said that Parker was removing six of his titles from Amazon’s Kindle Books program. The distribution of his books through Kindle was undertaken under contract between Parker and Amazon. In response to Parker’s email, representatives of Amazon asked him to report potentially infringing material “consistent with the Digital Millennium Copyright Act.” Id. at *3. (Note: Within Amazon’s Conditions of Use Page, its “Notice and Procedure for Making Claims of Copyright Infringement” Section includes a link to an online form to report instances of infringement.)
II. AMAZON MOVED TO DISMISS THE CLAIMS
Amazon moved to dismiss Parker’s claims against it on the grounds that: (1) Parker failed to state a proper claim for copyright infringement or unfair competition as to Amazon; (2) Parker’s claim for breach of contract (based on the Kindle publishing agreement for seven of his e-books, including the infringed work) was pre-empted by the Copyright Act; and (3) the remaining claims for misappropriation of likeness and unjust enrichment are barred by the Communications Decency Act, 47 USC § 230 (“CDA”).
The Court agreed with Amazon’s analysis and dismissed Parker’s complaint as to Amazon. (Note that the case still proceeds with respect to other defendants.)