Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG

By Eric Goldman

Rock River Communications, Inc. v. Universal Music Group, Inc., 2011 WL 1598916 (C.D.Cal. April 27, 2011)

We continue to get more cases telling us what 17 USC 512(f), the cause of action for bogus copyright takedown notices, DOESN’T cover. 512(f) wins are rarer.

In this case, the plaintiff remixed some Bob Marley songs with the permission of a purported licensee of Bob Marley songs. The defendants claim ownership or exclusive rights to most of Bob Marley’s catalog and didn’t consent to the remixes. They sent C&D letters to various parties republishing the remixes, claiming that the remixes were infringing. Naturally, those folks dropped the remixes after getting the C&Ds. This lawsuit is the remixer’s attempt to punish the defendants for driving their remixes out of the marketplace.

As one of several claims, the remixer sued for 17 USC 512(f) based on the defendants’ C&D letter sent to Apple for selling the remixes through iTunes. The court rejected the claim because iTunes is a retailer that exercises its own editorial discretion, not (in this situation) a web host storing material at the direction of users. Because iTunes wasn’t performing the functions contemplated by 512(c), the C&D letter isn’t the functional equivalent of a 512(c)(3) takedown notice and thus isn’t governed by 512(f). In a footnote, the court explains:

where the manner of the alleged infringement is not of any of the types addressed in 17 U.S.C. § 512(c), (d), or (e), notice of claimed infringement given is not a section 512(c)(3) notification and therefore not subject to section 512(f)

Thus, in footnotes, the court rejects as irrelevant the plaintiff’s contention that Apple qualifies a 512(k) “service provider” and the defendants’ contention that Apple couldn’t qualify for 512(c) because it had a financial interest in the sales.

The court doesn’t address the issue of whether a C&D letter can qualify as a 512(c)(3) takedown notice, although I think the answer is clearly yes (see Brave New Films v. Weiner and Dudnikov v. MGA).

As I mentioned in my last post on 512(f), “512(f) is a limited remedy that addresses one–and only one–type of problem.” This case bolsters that assessment.

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