17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals

By Eric Goldman

Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 2011 WL 2690437 (N.D. Cal. July 8, 2011).

I generally like furry critters, but I’m beginning to hate the virtual horses and virtual bunnies for their deleterious effect on Internet law. A prior ruling in this case held that Amaretto (the horses) couldn’t claim 17 USC 512(f) when Ozimals (the bunnies) sent takedown notices to Second Life that Second Life didn’t act upon. Now, in this ruling, the court says that 17 USC 512(f) preempts all state law claims based on the takedown notices, agreeing with language in the Diebold and Lenz 512(f) cases.

I must confess that copyright preemption baffles me generally. Consistent with that, I couldn’t tell if this ruling is relying on statutory preemption (17 USC 301), conflict preemption or field preemption. It might just be my shaky reading skills, but the opinion seemed to imply it was all three simultaneously.

There is a key difference between this case and the Diebold/Lenz cases, however. In those cases, the court said 512(f) was a viable claim. Here, the court has already said 512(f) isn’t viable for Amaretto. So Amaretto rightly pointed out that this ruling would leave Amaretto remediless. The court expressly acknowledges this result, saying: yup, that’s exactly what federal preemption means.

Amaretto also cited to the recent Rock River ruling, which indicated that 512(f) didn’t preempt a tortious interference case. The court distinguishes the Rock River case by saying that case did not involve a 512(c)(3) takedown notice, so the notice never fell within 512(f)’s ambit in the first place and thus 512(f)’s preemption wasn’t triggered. The court unfortunately doesn’t reference or distinguish Smith v. Summit Entertainment, which survived various state law claims in addition to a 512(f) claim. I don’t remember a preemption challenge in that case, but that’s perhaps because the case was really about trademarks, not copyrights.

All this leaves me more confused than before. If you’re looking for a good but challenging paper topic, the preemptive effect of 17 USC 512(f) looks worth exploring. It also reinforces that 512(f) is a limited solution that may be miscalibrated for its supposed purposes of helping to suppress bogus copyright takedown notices.

Prior blog posts on this case:

* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals (April 2011)

* Second Life Gets Out of Dispute Between Virtual Bunnies & Virtual Horses (Jan. 2011)

* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals (Jan. 2011)

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