What’s the Difference Between Copyright Takedown Notices and Spam?–Michael Grecco v. Fandom
The plaintiff in this case is Michael Grecco Productions, a photographer and serial copyright litigant who’s appeared on the blog before (e.g., 1, 2). The defendant is Fandom, which runs the Wikia platform for user-run fan-enthusiast wikis.
Grecco alleges that fans uploaded 28 of its copyrighted images to their wikis. The opinion summarizes: “Between November 2023 and April 2024, MGPI sent thirty emails to Fandom’s designated agent for receiving copyright infringement complaints, copyright@wikia.com, with notifications of claimed infringement for the Asserted Images.”
Grecco refused to create a support account for several reasons, including not wanting to agree to Fandom’s TOS. As a result, its emailed DMCA notices went to Fandom’s suspension queue and then vanished. Later, Grecco directly emailed Fandom’s GC, and two days later the targeted items were gone.
At issue is Grecco’s contributory copyright infringement claim for Fandom’s prior non-removals. The opinion doesn’t address the applicability of the 512 online safe harbor. Instead, the opinion turns solely on whether Fandom had actual knowledge of the alleged infringements based on the emails that went to the suspension queue.
The judge says Fandom is off the hook:
there is no evidence that Fandom had actual knowledge of infringement of the Asserted Images prior to Mr. Grecco’s May 18, 2024 email to Mr. Cussen. In fact, there is evidence that no one at Fandom reviewed MGPI’s Takedown Requests, and therefore there is evidence that Fandom did not possess actual knowledge regarding infringement of the Asserted Images…
There is no evidence that Fandom’s verification system was a deliberate attempt to avoid acquiring knowledge about copyright infringement. In fact, the evidence shows that Fandom implemented its verification system due to significant spam attacks….Fandom may have been blind to the Takedown Requests, but there is no evidence that Fandom was willfully blind.
As a result, the judge dismissed the contributuory copyright infringement claim on summary judgment.
A month later, the judge issued a follow-on opinion. Grecco asked the judge to reconsider the ruling. None of its arguments gets any traction. For example:
MGPI states the Court’s MSJ Order determined Fandom “never legally ‘received’ Plaintiff’s DMCA Request” under 17 U.S.C. § 512(c)(3). However, the Court’s MSJ Order did not state such. See generally MSJ Order (noting the Court need not reach the issue of whether Fandom qualifies for safe harbor under the DMCA and not analyzing, or mentioning, 17 U.S.C. § 512).
The judge also turns down Fandom’s request for attorneys’ fees of over $600k, saying “MGPI’s case was not frivolous or objectively unreasonable.” Fandom argued that Grecco is a serial copyright plaintiff, citing “MGPI’s business model of pressuring and collecting revenue from copyright settlements.” You may recall that a “plaintiff is a troll” argument helped the defendant in Bell v. Kiffin, but the judge says Grecco proceeded in good faith here.
Implications
Since the rulings, both Grecco and Fandom have appealed to the Ninth Circuit. This is the kind of case that could get affirmed in a memo opinion, but at the Ninth Circuit, anything could happen.
This opinion, like so many before it, does not directly engage the obvious epistemological question: if a “machine” “knows” information but its human operators do not, does the machine’s operator nevertheless have legally recognizable “knowledge” of that information? In Internet Law, I used to highlight this question when I taught the Register.com v. Verio opinion (now sadly dropped from the casebook). In that case, Verio’s scraper robots were repeatedly “notified” of Register.com’s TOS, but did that mean Verio (the corporate legal entity) had knowledge of the terms? The opinion sidestepped that question because Verio conceded knowledge of the terms, but what would/should the outcome have been without that concession?
In this case, Fandom contested knowledge, and the judge sided with Fandom. Without expressly acknowledging it, the judge says that Fandom doesn’t “know” of the emails in its suspension queue so long as no humans review them. Of course, this isn’t the final word on the matter, and issues about what the machines know will keep arising in Internet Law for the indefinite future.
This opinion raises a second-order question: what, if any, hoops can service providers require copyright owners to jump through to submit their NOCIs/takedown notices? On the one hand, Grecco could have just postal-mailed the takedown notices to Fandom using the mailing address on Fandom’s DMCA agent registration and solved its problem earlier. On the other hand, if Fandom publicly discloses an email address to receive DMCA takedown notices–as the statute requires–it seems logical that an emailed takedown to that email address ought to be enough to satisfy the DMCA requirements. (A reminder that this opinion didn’t turn on the DMCA; it turned on the prima facie element of knowledge).
This ruling implies that services can impose some hurdles on incoming emails without dooming their legal defenses, but it leaves open obvious follow-on questions: How onerous can those hurdles be? Do they have to be established in good faith? Could a service sufficiently burden the process of sending emails such that the email option is not practically available to copyright owners? For example, if Fandom’s TOS for its support account required the copyright owner to waive all copyright claims against Fandom to submit the DMCA takedown notice, now what?
This case brought to mind the Waterman v. TikTok ruling, also from the Central District of California. I summarized the Waterman case:
the complaint completely strikes out, despite claiming that TikTok received and didn’t honor takedown notices. TikTok also prevailed without relying on the DMCA safe harbor–which, if the plaintiff’s allegations are correct, shouldn’t be available to TikTok
Sound familiar? Maybe these rulings are completely unrelated, or maybe they signal some kind of judicial fatigue over photographers’ copyright claims?
Case Citation: Michael Grecco Productions, Inc. v. Fandom, Inc., 2:24-cv-05963-MWC-BFM (C.D. Cal.). The ruling on Fandom’s motion for summary judgment (May 9, 2025). The ruling on Grecco’s request for reconsideration and Fandom’s attorneys’ fee request, 2025 WL 2271482 (July 9, 2025).
Nomenclature note: The district court judge in this case is named Judge Court, a perfect but confusing name for someone who seemed destined for the bench.