512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici

By Eric Goldman

Project DOD, Inc. v. Federici, 2009 WL 4910320 (D. Me. Dec. 13, 2009)

17 USC 512(f) creates a cause of action for sending bogus copyright takedown notices. In a regulatory environment where service providers have itchy trigger fingers, it is crucial to suppress bogus takedown notices or the entire notice-and-takedown scheme becomes easily corrupted. Unfortunately, 512(f) cases have not fared well in the courts, and this one fails (at least temporarily) on procedural grounds. Nevertheless, the case illustrates the challenges faced by service providers dealing with copyright owners who freak out.

[The facts recited by the court are based on the complaint, so they have yet to be contested] The websites at issue are www.advocatesforchildrenintherapy.org and www.childrenintherapy.org run by ACT, both of which are critical of defendant’s method of providing psychology services. The plaintiff Project DoD, a non-profit organization which offers “censorship-free hosting” and caters to “the Internet’s rejects,” hosts the two websites. The defendant sent an incomplete takedown notice, which the plaintiff initially honored but then vacillated. The defendant submitted another takedown notice satisfactory to the plaintiff. The plaintiff sent the notice to ACT, who submitted a counternotification. After the statutory waiting period, the plaintiff restored the two websites.

So far, this looks like a typical notice-and-takedown interaction. Then, the court’s recitation of the complaint suggests the situation went off the rails. The plaintiff alleges that the “defendant and others engaged in a course of harassing communications with the plaintiff.” Allegedly, at least 6 other individuals–all of whom practice the same psychological methods–sent takedown notices to the plaintiff as well, each of which caused the plaintiff to take down the sites until it received ACT’s counternotice and waited the statutory waiting period, at which point they were restored. The defendant also allegedly sent a takedown notice to the plaintiff’s upstream connectivity provider, which allegedly has prompted that vendor to contemplate cutting off service to the plaintiff and, by necessity, all of the plaintiff’s others customers.

Two other points: the plaintiff takes the position that ACT is engaged in fair use commentary of the defendant’s copyrighted works (allegedly necessary to critique the defendant’s psychological methods), and there is no mention that the defendant or anyone else has brought a copyright infringement lawsuit against ACT.

The court dismisses the plaintiff’s 512(f) claim on jurisdictional grounds, citing the rule that sending a C&D letter does not create jurisdiction in the recipient’s home court. That rule makes sense, but it seems inapplicable to the plaintiff’s allegations. This lawsuit is not merely about the takedown notices sent to the plaintiff; it is about the alleged harassment campaign designed to kick ACT and its web host off the Internet. Such a harassment campaign should easily qualify under the Calder v. Jones “Effects Test” of expressly targeting harms towards the victim. For this reason, I think the jurisdictional dismissal is a bad ruling.

The court also seemed to misunderstand the point of 512(c)(3) notices because the court says they targeted ACT, not Project DoD as ACT’s host. Although the notices superficially target user-supplied content, the notices work mainly because they remove 512’s protective shield from the service provider–thus leaving the service provider exposed to becoming a copyright infringement defendant along with the targeted user. Every 512(c)(3) notice is an implicit threat to sue the service provider; the threat need not be made explicitly because every service provider automatically internalizes this threat.

More generally, this case provides a glimpse into some of the anarchy created by 512’s notice-and-takedown scheme. The system generally works OK for “mainstream” cases involving commercial copyright owners and commercial service providers (except when copyright owners want more than 512 provides, which leads to the multi-year Viacom v. YouTube litigation). However, 512’s balance can break down when applied to other types of disputes, such as this one involving an independent copyright owner going up against an ideologically motivated web host. In those non-mainstream cases, 512(c)(3) notices can (and often are) used to advance goals having nothing to do with protecting copyright interests.

UPDATE: Chris Mooney of Project DoD provides a useful recap of the dispute and the litigation, along with links to source materials.