Another 512(f) Case Fails–Handshoe v. Perrett

This is a long-running series of cases. I first blogged a related dispute in 2013 (plus a second blog post in 2013 as well). Regarding this case, Handshoe posted a YouTube video that included a photo apparently owned by a Canadian entity. The Canadian entity submitted a takedown notice in Canada, and YouTube blocked the video in Canada. (The takedown notice was YouTube’s online form, and there is some dispute whether the form constitutes a 512(c)(3) takedown notice). Handshoe made a 512(f) claim based on the takedown notice. It failed:

Leary has submitted competent summary judgment evidence demonstrating that he believed that Trout Point Lodge owned the Canadian copyright to the Photograph at issue. As Trout Point Lodge’s director, Leary has sufficiently shown that he held a good-faith belief that Handshoe had no permission from Trout Point Lodge to use, reproduce, or publish the Photograph. Leary completed the online YouTube form only after receiving notification that the Nova Scotia Supreme Court had resolved a copyright infringement claim involving the Photograph in Trout Point’s favor. To the extent the Fifth Circuit would hold that a person must consider fair use under §512(f), according to Leary’s sworn Declaration he took into consideration principles of fair use when completing the YouTube form. The evidence here uniformly supports Leary’s defense of good faith, and he has carried his initial summary judgment burden of demonstrating that he is entitled to judgment as a matter of law on Handshoe’s claim in Count 5.

In response, Handshoe has not come forth with competent summary judgment evidence that calls into question Leary’s good faith belief. Even if Leary acted unreasonably and made an unknowing mistake in his submission of the online form to YouTube, Handshoe has not presented evidence that tends to demonstrate some knowing misrepresentation on Leary’s part.

No big surprises here. Indeed, the Nova Scotia court ruling seems to be as solid evidence of the defendant’s “good faith” as I can imagine seeing in a 512(f) case.

In a footnote the court acknowledges as dicta, the court has some interesting things to say about the international angles of the case:

In this case, the conduct at issue is Leary’s, all of which occurred in Canada. The parties have not directed the Court to any evidence in the summary judgment record demonstrating that any part of Leary’s conduct took place in the United States or that Leary’s completion, while in Canada, of an online form that did not reference the DMCA constituted a knowing material misrepresentation “under [§ 512]” that Handshoe’s YouTube video was infringing Trout Point’s Canadian copyright. The form required Leary to select the country in which the copyright was located, and he chose Canada. The video was apparently disabled by YouTube in Canada, but not in other countries. Handshoe has not presented any competent summary judgment evidence tending to show that Leary invoked the laws of the United States in submitting the takedown notice on Trout Point Lodge’s behalf, or that the video was ever disabled in the United States. Leary avers under penalty of perjury that he did not intend to invoke the DMCA when he completed the YouTube form, but instead believed that YouTube was acting under its own policies and Canadian law due to his selection of Canada as the applicable jurisdiction. According to Leary, “[i]t was not obvious to me, and in fact it was unapparent, that YouTube was having me fill out a DMCA notice.” Handshoe has not submitted any probative summary judgment evidence to contradict this evidence.

We don’t see enough 512(f) cases to believe this fact pattern will repeat often, but it’s an interesting thought exercise to consider how copyright’s territoriality affects the 512(f) exposure by non-US residents submitting takedown notices to global services.

Case citation: Handshoe v. Perrett, (S.D. Miss. Sept. 13, 2018)

Prior Posts on Section 512(f):

* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
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