That is one other lawsuit involving the Bored Ape Yacht Membership (BAYC) NFTs. (Q: why are the apes so bored? A: as a result of they spend a lot time in court docket proceedings). On this lawsuit, BAYC sued an “appropriation artist,” Ripps, who sought to touch upon anti-Semitic features of the BAYC NFTs. (Protip: if you wish to win in court docket, don’t self-describe as an “appropriation artist”). Ripps created an NFT assortment, the “Ryder Ripps Bored Ape Yacht Membership,” that “level to the identical on-line digital pictures because the BAYC [NFT] assortment however use verifiably distinctive entries on the Ethereum blockchain.”
Many of the opinion discusses the trademark implications of Ripps’ rival NFT assortment. The court docket treats Ripps’ assortment as competing towards and placing downward worth strain on the unique NFTs. With that framing, trademark legislation protects towards the undesirable competitors, and the court docket treats this as a straightforward rightsowner win. There are a number of methods the court docket may need distinguished the 2 choices: BAYC NFT potential patrons aren’t prone to view the Ripps NFTs as substitutes; the technological uniqueness of every NFT essentially forces patrons to acknowledge and perceive the variations between NFTs; membership within the BAYC comes with different “advantages” that Ripps didn’t supply, in order that they weren’t actually substitutes; all NFTs are arguably grifts, so who cares if grifters get grifted?; and extra.
I’ll deal with Ripps’ 512(f) declare. BAYC despatched 25 takedown notices focusing on Ripps, 4 of which truly resulted in content material removals. As a result of the opposite 21 didn’t have any impact, the court docket ignores these. Of the efficacious 4, three had been based mostly completely on trademark rights, not copyright. The court docket says these aren’t DMCA takedown notices by definition, as a result of they didn’t assert any copyright pursuits; so they’re exterior 512(f)’s scope.
It’s a neat parlor trick to keep away from 512(f) legal responsibility: make claims which are SO bogus that they evade the statutory scope. (See this ruling for one more instance of the identical parlor trick). Ripps identified this conundrum, however the court docket shrugs as a result of the takedown notices had been submitted utilizing generic submission types, not DMCA-specific submission types. This requires the court docket to make some painful contortions:
though the takedown notices included a “512(f) Acknowledgement,” it was particularly restricted to when it’s “relevant” – that means when or if related – and the Part 512(f) acknowledgment is clearly not relevant within the context of a trademark takedown discover. As well as, though the takedown notices state that the corporate contacting Defendants, Appdetex, is Yuga’s DMCA Agent, it doesn’t state that the discover is a DMCA discover.
Apparently, a takedown discover solely turns into a DMCA takedown discover when the sender provides a screaming neon label flashing “DMCA TAKEDOWN NOTICE SUBJECT TO 512(F).”
As for the remaining copyright-based takedown discover, the court docket says it doesn’t matter that BAYC didn’t have a copyright registration for the work at challenge as a result of unregistered works are nonetheless protectable.
I’ve documented dozens of ways in which 512(f) claims have failed, so the failure of this declare isn’t shocking. Nevertheless it gives but extra proof that 512(f) doesn’t assist victims of bogus takedown notices. By no means has, by no means will.
Case quotation: Yuga Labs, Inc. v. Ripps, CV 22-4355-JFW(JEMx) (C.D. Cal. April 21, 2023)
Prior Posts on Part 512(f)
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment