Selling printed goods or facilitating printing gigs: the Redbubble puzzle

Thomson Reuters
Publication Type:
Journal Article
Australian Business Law Review, 2019, 47 (2), pp. 74 - 100
Issue Date:
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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 conducted by the Australian company, Redbubble. 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 considers Redbubble’s business model in Australian law and to what extent it might nonetheless implicate the possibility of liability under s 38 of the Copyright Act 1968 (Cth) – that is, 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 is provided, as well as an explanation as to how Anglo-Australian law has evolved to distinguish agreements to sell future goods from agreements for services. The article deploys that analysis to suggest that Redbubble is an agent in the formation of an agreement to sell future goods by description. The article concludes by reconsidering as a matter of public policy Redbubble’s potential for liability under s 38 of the Copyright Act 1968.
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