At the moment is April Idiot’s day, and longtime readers know that I do not participate in gags that undermine my credibility as a blogger. So this publish is 100% true, even when it’d sound farcical.
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This ruling is a part of an ongoing multi-iteration tussle (out and in of court docket) over market share between two rival unions. I’m going to concentrate on the 512(f) declare. TL;DR: a copyright takedown discover that doesn’t meet the weather of 512(c)(3) can’t give rise to a 512(f) clam.
Particularly, the putative copyright house owners didn’t ship a correct 512(c)(3) takedown discover as a result of:
- it lacked particular identification of the copyrighted works. As an alternative, the discover stated generically: “A number of photos are posted with out SPFPA’s permission taken from our web site and picture archive.”
- it didn’t specify the exact location of the infringing works. As an alternative, the discover simply pointed to the goal’s web site, leaving the net host (Wix) not sure which, if any, of the pictures on the goal web site have been the allegedly infringing ones.
Due to these deficiencies, the court docket says: “The copyright be aware just isn’t a DMCA discover underneath § 512. And and not using a DMCA discover, § 512(f) doesn’t apply.” Cite to ISE v. Longarzo.
This ruling covers two key matters associated to 512. First, it addresses the weather of a correct 512(c)(3) discover. Figuring out the infringed works as “A number of photos are posted with out SPFPA’s permission taken from our web site and picture archive” isn’t particular sufficient; and with out specificity concerning the infringed works, a pointer to the web site URL as the placement of the infringing works isn’t particular sufficient both.
Second, it reiterates {that a} faulty 512(c)(3) discover is categorically immune from creating legal responsibility underneath 512(f). The discover could also be bogus, however it’s simply not the correct of bogus discover that triggers 512(f) safety. That latter level principally insulates takedown discover senders for his or her incompetence. ¯_(ツ)_/¯
Case quotation: Worldwide Unions, Safety Police and Hearth Professionals of America v. Maritas, 2023 WL 2726030 (E.D. Mich. March 30, 2023)
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BONUS 1: Edelmania Productions, LLC v. Jordan Service, 2023 WL 424238 (C.D. Cal. Jan. 26, 2023):
Plaintiffs allege that Service violated 17 U.S.C. § 512(f) when he falsely represented within the Vimeo Takedown Discover that he possessed an unique proper to the Documentary and that the Documentary’s presence on Vimeo infringed that proper. Service denies this allegation, but in addition alleges that he issued takedown notices, ostensibly on the recommendation of counsel. Studying these statements collectively, Service denies that the takedown discover included any misrepresentation. This denial is ample to bar judgment on the pleadings on this reason for motion. Furthermore, Service asserts he’s a joint writer of, and possesses a joint copyright in, the Documentary, and he has asserted an affirmative protection which, if confirmed, would launch him from language within the Settlement suggesting in any other case. Furthermore, he asserts that he was conscious of the Comedy Dynamics negotiations however expressed issues concerning the deal and by no means noticed last paperwork. He additionally denies that Comedy Dynamics had the suitable to distribute the Documentary. Construing these allegations as true and in Service’s favor, Service subjectively believed that he possessed an possession curiosity and that he by no means accredited the Comedy Dynamics deal. An affordable inference could also be drawn from these allegations that Service issued the Vimeo Takedown Discover within the good religion perception that he had an possession curiosity that was being infringed.
I’m fairly positive the drafters of 512(f) by no means contemplated that it might be invoked in disputes over possession. That’s one other place the place 512(f) doesn’t actually work.
BONUS 2: Barz Adventures Inc. v. Patrick, 2023 WL 2478550 (E.D. Tex. March, 13, 2023):
on February 4, 2020, Bar-Z submitted a DMCA notification to Google Play and Apple that App Star’s functions wanted to be taken down. Though App Star’s functions have been subsequently taken down by Google Play and App Star did endure some hurt, there isn’t any proof to fulfill the knowingly requirement. App Star argues that Bar-Z didn’t personal the copyrights and have been due to this fact not allowed to submit DMCA notifications. Moreover, App Star argues that the functions are denied copyright safety and that “Bar-Z knew or ought to have recognized that the design components cited within the DMCA Notification” will not be topic to safety underneath copyright legislation. Neither argument is convincing sufficient to steer the Court docket that Bar-Z knowingly made any materials misrepresentations to the service suppliers. The Court docket will dismiss this declare underneath the DMCA, as App Star is not going to be allowed to get well underneath this statute.
As for the tortious interference declare, App Star alleges that by submitting the DMCA notification to service suppliers, Bar-Z interfered with App Star’s contracts with sure chambers of commerce. Whereas Bar-Z did intrude with App Star’s current contracts and meant to take action, Bar-Z is protected by the protection of justification that it raised in its response. Underneath Texas legislation, authorized justification is an affirmative protection to tortious interference with a contract and is predicated on the train of both one’s personal authorized rights or an excellent religion declare to a colorable authorized proper. Primarily, if Bar-Z can show as a matter of legislation that it had a authorized proper to intrude with a contract, then it has “conclusively established the justification protection, and the motive is irrelevant.” Right here, the Court docket has already discovered that Bar-Z had a authorized proper to intrude with App Star’s contracts with the chambers of commerce. Particularly, Bar-Z had a official declare relating to App Star’s wrongful actions in creating its functions. Bar-Z didn’t submit the DMCA notification with any dangerous religion and due to this fact, it was justified in making its declare to Google Play and the Apple App Retailer. The Court docket finds that Bar-Z has conclusively confirmed its justification protection, due to this fact, App Star’s tortious interference declare might be dismissed.
You may’t win with 512(f), you’ll be able to’t win with out it. ¯_(ツ)_/¯
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Prior Posts on Part 512(f)
* 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