Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯

This is one of several cases where major copyright owners are trying to punish Internet access providers (IAPs) for alleged infringements by their subscribers. Earlier this year, the court refused to dismiss the lawsuit in an opinion I described as “UGH.” These lawsuits against IAPs are problematic for many reasons, including the failure of 512(a), the danger of assuming that notices of claimed infringements (NOCIs) actually reflect infringing behavior, and the mismatch between the wrongdoing of alleged copyright infringement and the remedy of terminating Internet access.

The parties are now immersed in motion practice. The court laments: “The parties’ teams of lawyers have been prolific in motion practice, and currently thirteen motions are pending.” Judge, this is what copyright owners do when they are engaged in an impact litigation campaign. Copyright owners routinely deploy lawfare to shut down entire industries.

In this blog post, I’ll discuss the IAP’s counterclaim for 512(f). The plaintiffs initially sued over 11,482 works, but later they amended their complaint to cover only 11,027 works. The defendant alleges that the withdrawal of 455 works from the complaint indicates that the plaintiffs never had the rights to assert those works and that should constitute a “misrepresentation” actionable under 512(f). The court gives several reasons for dismissing the 512(f) claim:

• It says that the defendant didn’t assert sufficient scienter behind the misrepresentation to satisfy 512(f)’s onerous scienter requirements.
• A 4% error rate (455/11,482) would not be material.
• “It would be ironic that an amendment to reduce the number of infringed works would support a counterclaim.”
• The IAP apparently didn’t punish any subscribers based on the 455 overclaimed works.

I understand the court’s analysis of 512(f)’s elements, but like his prior opinion, the response is tone-deaf.

First, the plaintiffs appear to face no consequences for making HUNDREDS of mistakes in their pleading, despite their Rule 11 investigatory obligations. How did so many mistakes happen? The defendant spent time and money defending against those mistakes, and the plaintiffs have no responsibility? The court implicitly legitimizes the errors by saying they were only 4% of the total. This is a “plaintiffs will be plaintiffs” equivalent to “boys will be boys.” It normalizes inexcusable behavior. When a plaintiff makes this many errors, the defendants–and the rest of the world–deserve to know why.

Second, copyright infringement and vicarious copyright infringement are strict liability, but other parts of copyright law, such as contributory liability and the 512(c) defense, require defendant scienter about the infringements. Every time plaintiffs show that they don’t know what copyrights they have the right to enforce, it highlights the ridiculousness of legally compelling third parties, like Internet services, to do better than the rightsowners. Internet services have far less information about ownership and chains of title than the rightsowners, so of course they can’t figure out possible infringements as well as the copyright owners could.

This issue also arose in Viacom v. YouTube, where Viacom TWICE amended its complaint to remove works that it didn’t ultimately have the right to enforce. If Viacom was so confused about what works it owned, how was YouTube supposed to prevent infringement of those works from taking place?

The 4% error rate is especially damning. If the copyright owners are making that magnitude of mistakes on a complaint, when lawyers are involved and they are spending a lot of money to be careful, imagine their error rates on NOCIs they send, when they do far less preparatory and investigatory work? Copyright owners treat NOCIs as conclusive proof that infringement is taking place (indeed, the “terminate repeat infringers” doctrine is premised on this assumption), but such high error rates actually prove the opposite–that NOCIs are not credible evidence of infringement. For more on this, see the Steadfast case.

Case citation: Warner Records Inc. v. Charter Communications, Inc., 2020 WL 6511988 (D. Colo. Nov. 5, 2020)

Prior Posts on Section 512(f):

* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 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