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June 19, 2012
First Post-Viacom 512(c) Opinion Doesn't Look Much Different--Obodai v. Demand Media
By Eric Goldman
Obodai v. Demand Media, Inc., 2012 WL 2189740 (SDNY June 13, 2012)
This is the first substantive ruling I've seen interpreting the Second Circuit's Viacom v. YouTube ruling. (The Viacom ruling was also discussed in the Ouellette case, but that was tangential to its main discussion). The good news is that the opinion looks pretty much like it would have looked before Viacom v. YouTube. The bad news is that the case was a layup victory against an outgunned pro se plaintiff (who is also unsuccessfully sued YouTube), so we don't really learn much we didn't know. The ugly news is that even at a comparatively svelte 17 pages, the opinion remains an unfortunately long read compared to brief and to-the-point Section 230 opinions.
Obodai claims that a Cracked.com user, "socialway," published 32 items to his Cracked.com profile that infringed Obodai's copyrights. Apparently Obodai never sent 512(c)(3) takedown notices. Nevertheless, after Obodai filed his complaint but before he served it, Cracked.com apparently found out about the complaint, treated it as a 512(c)(3) takedown notice, and removed the 32 files. Thus, Obodai came into the court with the virtually untenable legal position that he didn't send proper takedown notices but the service provider removed the files anyway. In the modern era, plaintiffs like this never win their lawsuits.
Still, Obodai tried many of the standard arguments to disqualify Cracked.com from the online safe harbor. These arguments go nowhere, and Cracked.com easily gets summary judgments. Some of the facts Obodai asserted that had no impact with the judge:
* Cracked.com ran keyword-triggered ads next to socialway's posts
* Cracked.com used "Tynt" to measure search engine traffic to its pages
* Cracked.com has received many other takedown notices
* Cracked.com permitted "unprotected syndication or distribution and display acts." The court interprets this to mean that "Cracked permitted users to post and share content" analogous to the activities in Viacom and Wolk.
All of these assertions result in a resounding "thud."
Obodai also tried to argue that Cracked.com engaged in willful blindness. Expect to see this argument addressed in every 512(c) case for at least the next 5 years. Obodai alleged:
* "defendant designated a copyright agent as a means of ensuring its willful blindness to infringement." The court replies that the statute contemplates designated agents, so this can't evidence willful blindness.
* a Cracked.com staff member infringed a third party copyright. The court replies that even if true, infringement of a third party's copyright has no bearing on the plaintiff's copyright claim.
Putting the details aside, this case doesn't really teach us much. For the past 14 years, the rule has been that responsible plaintiffs send proper 512(c)(3) takedown notices, and responsible service providers respond expeditiously. Obodai's failure to hold up his end of the bargain doomed his case.
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