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March 26, 2010
YouTube Uploader Can't Sue Sender of Mistaken Takedown Notice--Cabell v. Zimmerman
By Eric Goldman
Cabell v. Zimmerman, 2010 WL 996007 (S.D.N.Y. Mar 12, 2010)
A few other folks have written about this case already, but it's worth noting a couple of points.
Cabell posted a video, Pretty Faces, to YouTube. Actors' Equity Association sent a takedown notice to YouTube for the video, which YouTube honored. After Cabell complained, AEA realized that it sent the takedown notice in error. Cabell then sued AEA for the bogus takedown notice.
Cabell argued that AEA's takedown notice constituted a copyright infringement because it interfered with Cabell's ability to exercise his 106 rights. For example, the notice caused YouTube to take down the video, which cut off Cabell's "distribution" of the work. I've never seen this argument advanced before, so in that sense it's creative, but unfortunately it's a completely misguided reading of copyright law. A defendant can't infringe copyright without making a copy, distribution, performance or display of the copyrighted work--and sending a bogus takedown does none of those things. So as much as I would be excited by finding a creative new theory to curb bogus takedown notices, this wasn't it.
Cabell's 512(f) claim failed because the AEA made a mistake--at most, negligently--rather than making the error with a legally actionable level of scienter. The state law claims were dismissed without prejudice to refiling in state court.
1) Cabell's situation is an example of collateral damage from our notice-and-takedown scheme. AEA made an error, YouTube jumped at AEA's request (as 512 expects it to do), and Cabell's legitimate content was temporarily stripped from the information ecosystem through no fault of his own. Obviously, every legal rule will create errors of omission and inclusion, so we shouldn't overweight this one--but this case reminds us that bogus takedown notices do have a cost. Perhaps the Lenz v. Universal case will help sharpen up the quantifiable costs to the uploader, but there's little chance that we can fully account for the social losses.
2) This is another example supporting YouTube's argument in the Viacom v. YouTube lawsuit that YouTube can't tell which user-posted videos are licensed or not because--once again--the rightsholder couldn't figure it out either. After confirming the error, the AEA representative wrote to YouTube: "The clips from Pretty face [sic] were submitted to me by someone claiming that it was done with Equity Actors; I took it on blind faith that the person was correct." If the AEA representative, who has unrestricted access to all of the necessary information to figure out what assets it has the right to enforce, can't even try to figure out if it's properly enforcing a copyright, how can YouTube accurately ferret out illegitimate videos with none of that information?
UPDATE: Ben Sheffner thinks Cabell did not assert a the 512(f) cause of action. I also agree that Cabell's lawsuit was an overreaction, but I'm less sympathetic to copyright owner errors than he is--especially in this case, where it appears the takedown notice sender did not do any investigation before sending the notice.
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