Copyright Battles Over City Council Videos
In the last month, two more copyright lawsuits over city council videos have triggered my alerts. Both cases included a 512(f) claim, and both 512(f) claims survive the preliminary dismissal efforts.
Levy v. Kilgore, 2024 WL 5295080 (W.D. Tex. Dec. 14, 2024)
A magistrate judge recommends sending a 512(f) case to trial. The court summarizes the facts:
The two videos at issue comprise excerpts from Lakeway City Council meetings and a presentation Kilgore gave as mayor to Lakeway residents, sitting at a desk in front of United States and Texas flags. In the full version of the latter video, Kilgore begins: “Hey, good afternoon, Lakeway. It’s Mayor Tom with another Mayor Facebook Live presentation to you, the residents of the City of Lakeway, best little city in West Travis County.”
In his DMCA takedown notices, Kilgore states that, as the creator of the source video, he “owns all rights to it,” and refers to the disputed videos as “the infringing material.”…
Kilgore contends that he has a subjective, good-faith belief that he owns the copyrights.
If copyright law gives the mayor the ability to decide how constituents talk about his work, then Lakeway isn’t the best little city in West Travis County or, for that matter, anywhere. (Travis County is part of the Austin metro area).
On the core scienter point, the court says: “Inquiry into the credibility of Kilgore’s asserted subjective belief is appropriate for trial.” Levy has an uphill battle establishing Kilgore’s subjective belief for Section 512(f) purposes. However, based on the court’s recounting, this case looks like it could be an example of using copyright as a memory hole tool.
Levy argued that Kilgore didn’t consider fair use before sending the takedown notices. Kilgore responded:
Kilgore avers that he did consider fair use. “I relied on the advice of counsel that [the] video in question infringed on my copyright and was not fair use.”
Kilgore might need better legal advice on copyright law…but also, see my post on the Lenz case predicting that all 512(f) defendants had to do is say “yeah, I thought about fair use” and they would get a free pass.
The court accepts Levy’s alleged damages (“paying to set up a website to host the videos after their takedown, paying a consultant to prepare counter-takedown notices, and incurring attorneys’ fees”) as sufficient to send to trial.
On January 6, 2025, the supervising judge summarily approved the magistrate judge’s recommendations.
Channel 781 News v. Waltham Community Access Corp., 2025 WL 35245 (D. Mass. Jan. 6, 2025)
The court summarizes the facts:
Plaintiff Channel 781 News (“Channel 781”) operates a YouTube channel with videos of news about the City of Waltham, Massachusetts. Some of these videos are clips of meetings of the Waltham City Council that Channel 781 excerpts from recordings of the full meetings posted online by Defendant Waltham Community Access Corporation (“WCAC”). In September 2023, WCAC sent multiple takedown notices to YouTube claiming that Channel 781’s videos amounted to copyright infringement. YouTube temporarily removed the videos and disabled Channel 781’s channel.
WCAC describes itself as an “independent nonprofit corporation,” not a government agency, which potentially changes the strength of its copyright claim. My position is that local governments can’t claim copyright for records of official proceedings, like videos of city council meetings. However, when the government outsources the work to a third party, the analysis gets more complicated. On the surface, those third parties can generate copyrights just like any others. The policy outcomes, however, should be the same: copyright law should not inhibit people’s access to government or ability to criticize the government.
Channel 781’s 512(f) claim survives WCAC’s motion to dismiss. On the scienter question, the court says:
Channel 781 alleges that before sending the takedown notices, WCAC stated that it would take action against those using its “content to score political points” or “encourage residents to hate.” In later discussions between the parties, Channel 781 explained why it believed its videos constituted fair use. WCAC responded that “any use of the clips by Channel 781 required permission” and that Channel 781’s videos “would be more acceptable to WCAC if Channel 781 used them only to report facts, but not to express opinions or further an agenda.” These allegations support a reasonable inference that WCAC sent the takedown notices based on factors other than a good faith belief that Channel 781’s videos were not fair use and that
WCAC knew it was doing so.
WCAC’s reuse policies sound dubious to me. At minimum, the policies are guaranteed to lead to arbitrary distinctions when WCAC decides to enforce its rights against reusers. The better policy outcome would be to blow up WCAC’s copyright status so that they can’t get into the business of using their purported copyright interests to pick winners-and-losers in citizens’ or journalists’ efforts to hold government accountable.
Prior Posts on Section 512(f)
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! 
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* 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
