Another 512(f) Claim Fails–Ouellette v. Viacom
By Eric Goldman
Ouellette brought a 17 USC 512(f) claim against Viacom for sending bogus takedown notices. As we know, it’s almost impossible to win 512(f) cases, and as a pro se, Ouellette had no chance.
In setting the standard, the court says the copyright owner must consider the fair use doctrine (citation to the Lenz case):
the fair use doctrine is necessarily part of a copyright owner’s initial review of potentially infringing material, and must be considered in assessing whether a copyright infringement exists
Nevertheless, this gesture towards fair use doesn’t really help this or any other 512(f) plaintiff. Per the Rossi case, the 512(f) standard remains that the copyright owner’s bad faith is measured subjectively. Ouellette argued that he successfully counter-noticed Viacom’s takedowns, that Viacom kept DMCAing his videos, and that Viacom uses scanning software without human oversight. Even if all of that is true, the court says, “Ouellette has not presented any factual information plausibly suggesting Viacom actually knew Ouellette made fair use of its copyrighted material, and that it acted with the requisite subjective bad faith in issuing its takedown notices.”
Part of that was due to Ouellette’s pleading failure for not explaining why his publications qualified for fair use. (I assume future 512(f) plaintiffs will rectify that). Even so, it’s clear the Rossi requirement of subjective bad faith dooms almost all 512(f) complaints unless the plaintiff, when filing the complaint, (a) has smoking-gun evidence of subjective bad faith, (b) can make an overwhelmingly compelling case that the publication was obviously protected by fair use, or (c) the takedown notice had material factual errors (like it took down something the copyright owner didn’t even own). Given the virtual impossibility of winning 512(f) claims, this case just gives us more reasons to favor 512(f) reform.
We blog virtually every 512(f) case we see.