January 29, 2011
Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability--Rosen v. HSI
By Eric Goldman
Rosen v. Hosting Services, Inc., 2010 WL 5630637 (C.D. Cal. Aug. 16, 2010).
[This case just showed up for me in Westlaw. It's not a major case but it's worth a brief note even 5 months later]
HSI is a web host. Barry Rosen is a professional photographer. I saw 25 entries in the C.D. Cal. PACER database since 2005 showing a Barry Rosen as plaintiff (many against Internet company defendants), so he may be a frequent user of judicial services.
Rosen sent a takedown notice covering 4 photos of "Daisy Fuentes," identifying the associated URLs. As it turns out, apparently the photos depicted Amy Weber. The host forwarded the takedown notice to its customer, who allegedly didn't remove the files before Rosen's lawsuit.
The court says HSI isn't contributorily liable because Rosen's takedown notice was insufficient to confer the requisite knowledge. The court doesn't reflectively explore the interplay between the common law principles of knowledge and the statutory requirements of 512; it treats a defective statutory notice as also defective for the common law analysis. I think this is a reasonable approach but the court doesn't get into the nuances.
The notice itself was defective because the "notice contains inherently inconsistent information. While it recites relevant URLs, the reference to Daisy Fuentes, who is not depicted at any of those URLs, makes the notice defective." The court amplifies in a footnote: "its incorrect identification of the allegedly infringing material made it impossible for HSI to assuredly find that material and assess Rosen's infringement claim." It's interesting to see the court apply a high level of formalism towards 512(c)(3) notices, just as courts sometimes are highly formalistic about the service provider's 512 requirements.
HSI counterclaimed on 17 USC 512(f), and the court denies Rosen's summary judgment motion, saying "the incorrect descriptions of the materials in question could be found to be a knowing material misrepresentation."
The parties settled the case shortly thereafter, so we'll never know how this story would turn out in court.
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