CafePress, the popular website that allows users to upload an image and then have that image printed onto a t-shirt, shower curtain, flask, or pretty much anything else you can imagine, was recently sued by an artist whose artwork was put onto several CafePress items without his consent. CafePress’s inability to get out of the case through pre-trial motion practice shows why e-commerce website operators need to be careful about how much–and how–they use their users’ uploaded images.

CafePress sought to dismiss the artist’s lawsuit at the summary judgment stage of litigation, claiming that it was protected by the Digital Millennium Copyright Act’s (DMCA) “safe harbor,” which protects internet service providers under certain circumstances.

The court denied CafePress’s motion for three primary reasons. First, the court said that CafePress wasn’t a typical internet service provider that simply provided an online platform for users to post material: “CafePress goes beyond facilitating the sale of products between internet users by directly selling products to online shoppers through the CafePress Marketplace.” Second, the court held that, because CafePress deletes the metadata from uploaded images, CafePress may interfere with copyright owners’s technical measures used to identify or protect copyrighted works. Third, because CafePress retains the discretion to determine what images are sold through its CafePress Marketplace, the court held that CafePress was not merely facilitating the storage and access of the allegedly infringing materials.

The DMCA’s safe harbor provisions, and the cases interpreting them, can be a minefield for internet service providers.┬áIf you have questions, please contact a member of our intellectual property team!