Ellen Okolita began a business in 2015 designing and making Halloween costumes, which she sold in part through Etsy. For her Etsy shop, she used a series of photographs of children wearing the costumes. Okolita says that copies of her photographs are being used on Amazon.com, eBay.com and Walmart.com to sell copies of her costumes. Upon discovering this, she promptly Okolita applied for copyright registrations for the photographs and costumes, and at the time of filing had obtained registrations on the photographs.
Okolita says that the defendants have ignored her demands that the infringing products be removed, and that her images, advertising text and costumes continue to appear in hundreds of third-party vendor listings on their sites, undercutting her prices and severely impacting her sales. She notes that the three defendants are the top three online retailers in the United States, with hundreds of billions of dollars in annual revenues between them. She asserts that they deliberately permit and encourage wide-scale copyright infringement by third party vendors to arrive at these revenues.
Okolita states that the three have technology, such as image recognition software, that would permit them to take down all offending sites, but that they refuse to deploy such measures, relying on the “notice and takedown” and “safe harbor” provision of 17 U.S.C. § 512 to profit from sales made as a result of third parties’ infringement of her copyrights. She asserts that the defendants do not qualify for such immunity because they do not merely “store” infringing content; they provide and encourage dissemination of the infringing content; and that they regularly permit content that had been subject to a takedown notice to be republished. Okolita asserts that the readily availability of technological measures demonstrates that Defendants have the right and ability to control the infringing usage of her material, which they wrongfully refuse to implement.
Okolita asserts direct, contributory, vicarious and induced copyright infringement and negligent infliction of emotional distress.
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