Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals

By Eric Goldman

Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 2011 WL 1753479 (N.D. Cal. April 22, 2011). My initial blog post on this case.

The virtual horses and bunnies are back. This is the lawsuit between two vendors of virtual animals in Second Life. The bunnies believe the horses infringe their copyrights and sent 512(c)(3) takedown notices to Second Life to squash the horses. The horses then initiated this lawsuit to avoid a takedown. When we last visited this tale, the horses got an injunction against the bunnies sending Second Life further 512(c)(3) copyright takedown notices.

In the latest ruling, the court dismissed the horses’ 17 USC 512(f) claim for sending bogus copyright takedown notices. The court says that the statute requires that the service provider actually act upon the takedown notices before a 512(f) cause of action exists. Here, Second Life never actually pulled the plug on the horses, so the statutory requirement wasn’t met. The horses protested, rightly IMO, that it would make more sense to impose liability for sending bogus 512(f) takedown notices, irrespective of whether the service provider honors them. This argument doesn’t sway the court:

limiting suits for damages to those caused by an actual takedown is a less effective deterrent than allowing suits based merely on the filing of a false Takedown Notification. But the statute is unambiguous in entitling an alleged infringer to damages caused “as the result of the service provider . . . removing or disabling access to the material”

I wouldn’t say this opinion is a green light for copyright owners to send bogus takedown notices, but it does reinforce that 512(f) is a limited remedy that addresses one–and only one–type of problem.

Also interesting: the court doesn’t dismiss a copyright misuse cause of action, although it says damages aren’t available for it.