What Hath Amazon Wrought?

A not–infrequent debate in a complex global economy is who should bear the responsibility for infringement. The Patent Act points to one who “without authority makes, uses, offers to sell, or sells any patented invention.” Oftentimes, website owners find themselves sued for patent infringement based on some website feature or functionality that came to them “out–of–the–box”…built or hosted by a third–party vendor. Despite the fact that they might not themselves know a cookie from a breadcrumb, as users of the functionality, they find themselves responding to a complaint. (Although they may be able to get indemnification or defense from the vendor).

But even the Patent Act appears to have its limits. Following an advisory jury trial to answer certain factual questions underlying claims of infringement, the Western District of Washington concluded that Amazon did not “offer to sell” products accused of infringing certain design patents merely by hosting a platform through which third–party sellers can offer products to Amazon’s customers. Judge Martinez was clearly troubled that Amazon “enables and fosters a market place reaching millions of customers, where anyone can sell anything, while at the same time taking little responsibility for ‘offering to sell’ or ‘selling’ the product,” but considered the expansion of the definition of direct infringement to be a question for Congress, not the courts.

Savvy readers may notice parallels here to similar debates over the general topic of who should bear responsibility for harms inflicted by a third party, but magnified by the world wide nature of the Internet. For example, the Digital Millennium Copyright Act limits the liability of the providers of online services for copyright infringement by users. Likewise, Section 230 of the Communications Decency Act shields internet service providers who publish content written by others. In general, there is a trend towards just the type of finding Judge Martinez reached—that mere provision of a platform isn’t enough to expose one to a lawsuit for whatever someone else might choose to do on it. A harsh result in some instances, no doubt, but perhaps necessary so as not to cripple the open nature of online communication.

Now that the world has decades of experience with the Internet, courts seem to recognize that it is simply another (new, better, faster) tool for communication—this era’s telephone. Just as the telephone company cannot be held responsible for what people say to each other on a phone call, an online platform provider cannot be held accountable for what people communicate across that platform. And just because the web is world–wide, having or hosting a website doesn’t mean a business is physically present at every computer terminal or smart–phone screen connected to that web.