Selling Printed Goods or Facilitating Printing Gigs: The Redbubble Puzzle

Abstract

The distinction between agreements to sell goods and agreements to provide the service of making goods has long troubled the law. Recently the issue has arisen afresh in the context of copyright litigation concerning an online marketplace facilitated by the Australian company, Redbubble. In September 2017 that company explained its core activity to the Federal Court of Australia as the provision of an internet marketplace for a print-on-demand personalisation service. Moreover, it made the submission to the court that ‘its system of a marketplace, including its terms and conditions of sale to any reader, would make clear that there was no article on the Redbubble website that was “for sale in any sense”’. Thus, while an obvious reason to visit the website is to locate and order articles to buy based upon the descriptions there communicated, Redbubble’s conception of the function of its website, and indeed of the nature of its whole business, is quite different from being a goods seller. Since mid-2012 Redbubble’s contractual terms have attempted to shift Redbubble from being involved in selling printed goods to it doing no more than facilitating printing gigs. This article is a consideration of Redbubble’s business model in Australian law and to what extent it might nonetheless implicate the possibility of section 38 Copyright Act liability: dealing in articles with knowledge that their making constituted infringement. To do so an overview of the terms under which Redbubble purports to arrange transactions will be provided. An explanation will also be provided as to how Anglo-Australian law has evolved to distinguish agreements to sell future goods from agreements for services and the article will deploy that analysis to suggest that Redbubble is an agent in the formation of an agreement to sell future goods by description. The article will conclude by reconsidering as a matter of public policy Redbubble’s potential for liability under section 38 of the Copyright Act.

Keywords: copyright, sale of goods, regulatory theory, private international law, legal history, internet-based business models

JEL Classification: K19, K11, K12, K22