512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America

October 8, 2020 · by · in Copyright, Derivative Liability

[Remember that our country is facing multiple existential threats. PLEASE VOTE.]

This case involves two “heavy metal” bands, “We Are the End” and “Rings of Saturn” (the Spotify bio describes Rings of Saturn as “a progressive, technical deathcore outfit”). I listened to a few songs of each band at Spotify–this genre is definitely not my kind of music. At its core, the lawsuit involves a claim that bandmates were developing songs, then the bandmates separated, after which one bandmate allegedly stole parts of songs from the other bandmate. Bandmate A sent takedown notices to YouTube over Bandmate B’s songs. Bandmate B’s label submitted a counternotice.

I’m seeing increasing numbers of fact patterns like this, where an online service provider like YouTube or Amazon gets caught in the crossfire of what is essentially an ownership dispute. If the parties can’t agree who owns the work, then how can a service provider–who possesses none of the relevant facts–figure it out? Here, the counternotification process took care of YouTube’s liability, forcing the ownership dispute into court. In other circumstances, though, the service provider is paralyzed by disputes like this because it doesn’t know who to believe, but it faces potential liability for any action it takes (or for not acting at all).

I’ll focus only on the 512(f) part of this dispute. Bandmate A claims that the label’s counternotice violated 512(f). In April, the court dismissed the 512(f) claim, saying that Bandmate A hadn’t done a good enough job laying out the song similarities. Love v. Nuclear Blast America, Inc., 2020 WL 4805471 (C.D. Cal. April 16, 2020). Bandmate A filed an amended complaint, and this time the 512(f) claim survives the motion to dismiss.

Bandmate A’s argument is basically that the label had no idea whether its uploads were legit when it submitted the counternotices. “Plaintiff contends that Nuclear Blast knowingly misrepresented to YouTube that his notice was a mistake or misidentification because (1) Nuclear Blast knew there was a dispute about the video, (2) it had no idea whether Plaintiff’s notice was a mistake or a misidentification, but (3) it issued the counternotice anyway.” The court says this is enough to plead a 512(f) claim.

Bandmate A did a good job overcoming the first dismissal, but to what end? The 512(f) claim will fail eventually. Nevertheless, it’s interesting to see how 512(f) claims have emerged as another vehicle for ownership disputes. That’s not what 512(f) was designed for, but that critique applies to just about every provision of 512.

Case citation: Love v. Nuclear Blast America, Inc., 2020 WL 5834289 (C.D. Cal. Aug. 19, 2020)

Prior Posts on Section 512(f):

* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* 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
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* 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
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* 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