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.