Media Law in the News 3

Ariana Mafi

3/12/20

Media Law in the News 3

Professor Carlson

Copyright Infringement: Amazon

Part I – Summary of Issue
I recently had an informational interview with an ex-Amazon employee, and she shared with me that in her line of work she developed a technology that helped weed out fake and counterfeit products and brands on the Amazon Marketplace. After further research, I learned that this is a common issue that is presenting itself on Amazon all the time. I chose not to find a specific case, but rather tackle the issue and see what I can learn from these kinds of scenarios and how to handle the issue if it ever happens to me. One specific scenario that I want to examine would be when a third-party seller uses my (also a third-party seller) product images to sell their counterfeit products. Since my last media law in the news examined the plaintiff’s case for copyright, I want to explore the Fair Use defense in this application.

Link: https://www.digitalcommerce360.com/2020/02/10/how-to-identify-and-eliminate-counterfeits-on-amazon/

Part II – RULE – Legal Questions Raised & Applicable Rule
There are a few questions that come to mind when I look at this issue.

1)      Is this a violation of Intellectual property rights (copyright, trademark, patent)?

2)      For what purpose was the copyrighted work used without permission?

3)      What was the nature of the copyrighted work that was used without permission?

4)      How much and what portion of the copyrighted work was used without permission?

5)      What effect did the unauthorized use have on the copyrighted works market value?

Part III – APPLICATION – Applying the Relevant Doctrine / Precedent
This is a violation of intellectual property rights, specifically copyright laws. Rogue and counterfeit sellers commit copyright piracy by using an official sellers’ images to sell fake products. In the article, it discusses how counterfeit sellers are getting better at manipulating images just enough so that the detection software can’t detect that they are copyrighted images. However, for our intents and purposes, let’s say that the image was not manipulated and was an identical copy (just like many counterfeiters do on Amazon). Moving on, the images was not used for criticism, comment, news reporting, teaching, research, scholarship, or parody. Therefore, it is likely copyright infringement and the counterfeiters would not have a fair use defense. The Fair Use defense is a balancing test, so we must examine the rest of the questions to determine whether the counterfeiters could use a FU defense. Addressing question 3, the plaintiffs work was not scholarly or scientific, but was rather used to make money, therefore is likely more CI. Also, the entirety of the plaintiff’s work was used and copied exactly, therefore is CI. Finally, stealing the image and selling counterfeit products under a different brand takes business away from the plaintiff’s brand, could influence their reputation, and overall is hurtful and diminishing to what they sell. Considering all these parts, I would confidently say that the defendant does not have a fair use defense and did in fact infringe upon the plaintiff’s intellectual property.

Part IV – CONCLUSION
Overall, I found this issue very interesting because it came directly from someone I spoke to. This problem is not just some article but has a lot to do with people’s jobs. The person I chatted with said she had to work extra hard to maintain the integrity of Amazon’s platform by trying to find these copyright infringing brands, however people are getting much better at scamming the system. She also said that often Amazon takes down the accounts, therefore making it difficult for a plaintiff to make a case against anyone who infringes on their IP rights. I just hope that in the future, Amazon can continue to develop their technology to stop these brands from hurting the original content creators.