Redbubble allows users to upload images to be printed on t-shirts and other products. Customers can order products that are printed on demand by third party manufacturers. The upload and fulfilment functions are mostly automated - Redbubble operates as a marketplace platform with limited prior screening of uploaded content. Redbubble requires uploaders to warrant that their uploads are non-infringing copyright, and blocks certain keywords as search terms.
The court found Redbubble had infringed copyright:
- directly, by communicating the applicant's images to the public. While the uploader was the 'originator ... who had placed the image on the Redbubble website', Redbubble was directly liable because it 'was responsible for determining that content through its processes, protocols and arrangements with the artists.' (at [48])
- directly, by exhibiting infringing articles in public by way of trade (at [52])
- indirectly, by authorising the infringing acts of its users.
In finding that Redbubble was liable for authorisation infringement, the Court found that
'Redbubble did not expressly authorise any infringement but that it took conscious, considered and reasonable steps, both proactively and responsively, to prevent infringements and to prevent the continuation of infringements. The question, however, is whether the facts and relevant inferences establish constructive authorisation of infringement. The business established by Redbubble carried the inherent risk of infringement of copyright of the kind complained of [...]. It is true that Redbubble sought to mitigate the risk, but it was an inevitable incident of the business, as Redbubble chose to conduct it, that there were likely to be infringements. It could have prevented them by taking other steps but for business reasons Redbubble chose to deal with the risk of infringement by a process that enabled the infringements to occur. Such infringements were embedded in the system which was created for, and adopted by, Redbubble. There may have been a sound commercial basis for Redbubble to manage the risks of infringement as it did, but in doing so it authorised the infringements which occurred.' (at [67])
Redbubble could not benefit from the safe harbours, which are limited to telecommunications providers ('Carriage Service Providers') in Australian law. No defences to infringement applied.
In recognition that Redbubble had put 'in place processes to prevent and mitigate breaches which were reasonable and defensible', no additional damages were awarded. The court assessed damages at the nominal figure of $1, since there was no evidence presented to establish lost sales on items that were commercially available in licensed form.
While the applicants were only awarded nominal damages, Redbubble was ordered to pay 70% of the Applicant's court costs.