Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church

August 30, 2017 · by · in Copyright, Derivative Liability

Section 512(f) litigation has resulted in so much futility that it’s big news when a 512(f) complaint even survives a motion to dismiss. In this case, Johnson allegedly displayed copyrighted photos and videos of Paula White Ministries (the court implies it was to criticize the ministry). The ministry sued her for copyright infringement. Johnson said the copyright lawsuit was retaliation for allegedly “having exposed Paula White as a false preacher” and claimed malicious prosecution. The court dismissed the copyright claim and Johnson initiated separate lawsuits that included a 512(f) claim against the ministry and related folks.

The court says:

Johnson has presented facts sufficient for the Court to draw the reasonable inference that Defendants knowingly misrepresented copyright infringement to YouTube. Specifically, the verified Complaint avers that: (1) on multiple occasions, PWM/New Destiny “willfully, knowingly[,] and materially” made § 512(f) misrepresentations to YouTube that Johnson’s videos were infringing PWM’s copyrights (2) “PWM did not hold a valid copyright registration or certificate to the content contained in [Johnson’s] videos at the time of the misrepresentations”; and (3) the material posted on Johnson’s YouTube channel “was used lawfully in accordance with 17 U.S.C. § 107 of the Copyright Act”—the fair use doctrine

The court also says that Johnson sufficiently pled injury from the takedown notice because she “cites damages resulting from the termination of her YouTube channel.” Still, given 512(f)’s track record, Johnson faces long odds of getting a judgment in her favor.

Johnson’s claim for First Amendment injuries fails, but her abuse of process claim continues because YouTube did not accept her counternotification after it was notified of the ministry’s copyright complaint.

Case citation: Johnson v. New Destiny Christian Center Church, 2017 WL 3682357 (M.D. Fla. Aug. 25, 2017)

Prior Posts on Section 512(f)

* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment