A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo (Catch-up Post)

weekend-in-vegas-300x144I’m blogging this case now, even though it came out a few months ago, because we see so few 512(f) cases that make any progress at all. At its core, the litigants dispute ownership over a TV show, “The Weekend in Vegas.” ISE posted the video to Amazon. A defendant asked Amazon to remove it, which Amazon did. Among other claims, ISE sued the defendants for violating 512(f), saying the requests to Amazon were improper takedown demands. The court upholds ISE’s 512(f) claim against a motion to dismiss.

The court says ISE has standing to sue: “neither copyright ownership nor registration are prerequisites to bringing a section 512(f) action. As an ‘alleged infringer,’ ISE has standing to sue under section 512(f).”

On the merits, the court says ISE isn’t required to detail the conversations between the defendants and Amazon:

It would make little sense to require a plaintiff suing under section 512(f) to plead – consistent with Rule 11 – what the defendant did or did not include in their communications with an ISP where the plaintiff has only received notification that the ISP has removed content at the defendant’s request but not the defendant’s request itself.

The court also says that the claim can proceed even if the defendants didn’t specifically reference copyright in the removal requests to Amazon: “If Longarzo did in fact request that Amazon Video remove the Program for some reason unrelated to copyright or the DMCA, Defendants can quite easily move for summary judgment on ISE’s section 512(f) claim by providing ISE and the Court with copies of its communications with Amazon Video and arguing that the DMCA is not implicated.”

Finally, the court says ISE sufficiently pled subjective bad faith:

While ISE may struggle to produce evidence of subjective bad faith as the case progresses, the Complaint contains sufficient allegations of Defendants’ actual knowledge of misrepresentation to survive the present Motion. ISE alleges that it and Civillico executed the Deal Memo, pursuant to which Civillico “agree[d] that any work created during the course of business with [ISE] is the original work and property of [ISE],” and that “all rights, including copyrights, performance rights and publicity rights, belong to [ISE].” It alleges that, notwithstanding the Deal Memo, Civillico and Longarzo (an attorney), submitted a DMCA takedown notice to Amazon Video. It alleges that, even after ISE’s attorney notified Longarzo of ISE’s rights in the Program under the Deal Memo on more than one occasion, Longarzo refused to withdraw the takedown notice. That is enough to survive a motion to dismiss.

If you’re a 512(f) enthusiast, you know better than to get too excited about this ruling. The math still strongly indicates ISE will lose on 512(f).

Case citationISE Entertainment Corporation v. Longarzo, 2018 WL 1569803 (C.D. Cal. Feb. 2, 2018). A related follow-on ruling on April 16 didn’t break any new ground.

Prior Posts on Section 512(f):

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