DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk

March 28, 2018 · by · in Copyright, Derivative Liability

As part of the DMCA, Congress enacted a cause of action for people who send bogus copyright takedown notices, codified at 17 USC 512(f). It was a good thought executed terribly. The courts have interpreted the law to require subjective bad faith on the part of the takedown notice sender, which is a nearly impossible legal standard to prove and an impossible challenge for gathering credible admissible evidence. Thus, we see successful 512(f) claims very rarely, and usually when there is some defect like a default proceeding.

Plaintiffs might allege other legal claims in parallel with Section 512(f). Indeed, given the long odds against a successful 512(f) claim, the parallel claims might seem more promising. Now, another federal judge has thrown major shade on the practice, holding that 512(f) “preempted the field” and thus knocked out all parallel state law claims analogous to 512(f) (cites to OPG v. Diebold, Amaretto, Lenz). The court explains:

DMCA takedown notices, and the system of which they are a part, are creations entirely of federal law. The DMCA is a complex and comprehensive statutory regime that meticulously details the steps that providers must take to avoid liability and that copyright holders must take to enforce their rights. Congress also included express remedies for alleged infringers by providing for a counter-notice system and a cause of action if fraudulent use of the notice and takedown procedures causes injury. With this detailed process and these two express remedies, Congress intended to “appropriately balance[] the interests of content owners, on-line and other service providers, and information users in a way that will foster the continued development of electronic commerce and the growth of the Internet.” H.R. REP. 105-551(11) at 21 (1998). The pervasive nature of the DMCA, including an express remedy for the very wrong that counterclaimants here allege, “make[s] reasonable the inference that Congress left no room for the States to supplement” the remedies outlined in the DMCA….

Federal law’s near-total occupation of the field of copyright law further supports an inference that the federal interest in creating remedies to ensure compliance with the DMCA “is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”

So here’s where we stand. You can’t win a 512(f) claim, and you can’t plead around it. Great. Any wonder why robo-takedown notices are rampant?

Case citation: Stevens v. Vodka & Milk, LLC, 1:17-cv-08603-JSR (SDNY March 15, 2018)

Prior Posts on Section 512(f)

* 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
* 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
* 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
* 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