Lawsuit Over Bogus DMCA Complaint Actually Moves Forward

from the didn't-expect-that dept

We’ve discussed many times about how unfortunately toothless section 512(f) of the DMCA is in practice. That’s the section that can supposedly be used against “misrepresentations” under the DMCA. But, in practice, nearly all attempts to use DMCA 512(f) have failed. That’s why it’s always so interesting to see one that is succeeding. But as law professor Eric Goldman notes, there’s a case where a 512(f) claim has survived a motion to dismiss.

The background to the case is a bit involved, but apparently someone named Shirley Johnson was posting YouTube videos criticizing “New Destiny Christian Center” and the “Paula White Ministries.” Paula White Ministries claimed copyright infringement to YouTube and Johnson counternoticed. Paula White Ministries then sued, claiming copyright infringement over Johnson’s use of images and videos in her criticism. The case was dismissed, but the judge suggested that Johnson file a lawsuit against the plaintiff for “malicious prosecution.” She did so, though included in that suit was also a claim about “false copyright infringement complaints.” The court dismissed those claims, noting that those are not part of a malicious prosecution claim, so a separate lawsuit was filed claiming 512(f) violations. The defendants in this case made a motion to dismiss, but the big news here is that the 512(f) claim lives on.

Here, Johnson has presented facts sufficient for the Court to draw the reasonable inference that Defendants knowingly misrepresented copyright infringement to YouTube. Specifically, the verified Complaint avers that: (1) on multiple occasions, PWM/New Destiny “willfully, knowingly[,] and materially” made § 512(f) misrepresentations to YouTube that Johnson’s videos were infringing PWM’s copyrights… (2) “PWM did not hold a valid copyright registration or certificate to the content contained in [Johnson’s] videos at the time of the misrepresentations” … and (3) the material posted on Johnson’s YouTube channel “was used lawfully in accordance with 17 U.S.C. § 107 of the Copyright Act”—the fair use doctrine…. These allegations suffice to support a § 512(f) claim. See Curtis, 45 F. Supp. 3d at 1199 (finding that a § 512(f) claim was adequately pleaded where plaintiff “repeatedly alleged that [d]efendants knew that the takedown notices contained false infringement allegations”); see also Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1154–55 (N.D. Cal. 2008) (“An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine . . . is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.”).

The argument is slightly complicated by the fact that it appears that Johnson (bizarrely) failed to argue fair use in her complaint, and the court notes that this would have made her 512(f) argument even stronger, but cannot be used here. The defendants try to make a few claims to block this, including no actual injury, but the court doesn’t buy it:

Injury is a critical element of a § 512(f) claim…. As such, Johnson must allege that the purported misrepresentations proximately caused her damages…. In the Malicious Prosecution Action, the Court found that Johnson failed to state a § 512(f) claim because “each factual allegation related to Johnson’s damages stem[med] from the prosecution of the Copyright Action rather than the removal of her videos from YouTube.” … Here, Johnson again asserts damages stemming from prosecution of the Copyright Action in her Complaint, but she also cites damages resulting from the termination of her YouTube channel…. Thus, Johnson has sufficiently pled the existence of an injury caused by the misrepresentations.

Johnson also puts a First Amendment claim into this filing, which the court rejects for a variety of reasons. But the key thing here is that a 512(f) claim has actually survived so far. There’s still a long way to go, of course, and Professor Goldman notes “long odds” on it being successful in the end. Still, it’s always good to see 512(f) get at least some recognition from the courts.

Filed Under: , , , , , ,
Companies: new destiny christian center, paula white ministries, youtube

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Lawsuit Over Bogus DMCA Complaint Actually Moves Forward”

Subscribe: RSS Leave a comment

illegal, but?

It would be interesting to have a Special law for a 3rd party on its OWN to bring a case to court without the party represented..
For those cases where a person had Bad representation or was not given an option to prosecute or not enough MONEY.
1. caveat..would be that the 1st party get part of the return.

Its really interesting that another person can not take something to Court if they were NOT pert of it..


Have not read the case file, but if what is stated in the article is correct, it seems to me that the judge misunderstands a foundational principle of current copyright law, i.e., copyright attaches upon creation, and not upon publication and/or registration. Thus, it would be irrelevant for purposes of the DMCA that a work has not been registered. Registration is only a requirement for being able to bring a federal lawsuit. It is a jurisdictional requirement that to my knowledge does not apply to Section 512.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Report this ad??|??Hide Techdirt ads
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Older Stuff
12:25 Australian Privacy Commissioner Says 7-Eleven Broke Privacy Laws By Scanning Customers' Faces At Survey Kiosks (6)
10:50 Missouri Governor Doubles Down On 'View Source' Hacking Claim; PAC Now Fundraising Over This Bizarrely Stupid Claim (45)
10:45 Daily Deal: The All-in-One Microsoft, Cybersecurity, And Python Exam Prep Training Bundle (0)
09:43 Want To Understand Why U.S. Broadband Sucks? Look At Frontier Communications In Wisconsin, West Virginia (8)
05:36 Massachusetts College Decides Criticizing The Chinese Government Is Hate Speech, Suspends Conservative Student Group (71)
19:57 Le Tigre Sues Barry Mann To Stop Copyright Threats Over Song, Lights Barry Mann On Fire As Well (21)
16:07 Court Says City Of Baltimore's 'Heckler's Veto' Of An Anti-Catholic Rally Violates The First Amendment (15)
13:37 Two Years Later, Judge Finally Realizes That A CDN Provider Is Not Liable For Copyright Infringement On Websites (21)
12:19 Chicago Court Gets Its Prior Restraint On, Tells Police Union Head To STFU About City's Vaccine Mandate (158)
10:55 Verizon 'Visible' Wireless Accounts Hacked, Exploited To Buy New iPhones (8)
10:50 Daily Deal: The MacOS 11 Course (0)
07:55 Suing Social Media Sites Over Acts Of Terrorism Continues To Be A Losing Bet, As 11th Circuit Dumps Another Flawed Lawsuit (11)
02:51 Trump Announces His Own Social Network, 'Truth Social,' Which Says It Can Kick Off Users For Any Reason (And Already Is) (100)
19:51 Facebook AI Moderation Continues To Suck Because Moderation At Scale Is Impossible (26)
16:12 Content Moderation Case Studies: Snapchat Disables GIPHY Integration After Racist 'Sticker' Is Discovered (2018) (11)
13:54 Arlo Makes Live Customer Service A Luxury Option (8)
12:05 Delta Proudly Announces Its Participation In The DHS's Expanded Biometric Collection Program (5)
11:03 LinkedIn (Mostly) Exits China, Citing Escalating Demands For Censorship (14)
10:57 Daily Deal: The Python, Git, And YAML Bundle (0)
09:37 British Telecom Wants Netflix To Pay A Tax Simply Because Squid Game Is Popular (32)
06:41 Report: Client-Side Scanning Is An Insecure Nightmare Just Waiting To Be Exploited By Governments (35)
20:38 MLB In Talks To Offer Streaming For All Teams' Home Games In-Market Even Without A Cable Subscription (10)
15:55 Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue (15)
13:30 Techdirt Podcast Episode 301: Scarcity, Abundance & NFTs (0)
12:03 Hollywood Is Betting On Filtering Mandates, But Working Copyright Algorithms Simply Don't Exist (66)
10:45 Introducing The Techdirt Insider Discord (4)
10:40 Daily Deal: The Dynamic 2021 DevOps Training Bundle (0)
09:29 Criminalizing Teens' Google Searches Is Just How The UK's Anti-Cybercrime Programs Roll (19)
06:29 Canon Sued For Disabling Printer Scanners When Devices Run Out Of Ink (41)
20:51 Copyright Law Discriminating Against The Blind Finally Struck Down By Court In South Africa (7)
More arrow