512(f) Claim Over Counternotice Survives Motion to Dismiss–Handshoe v. Perret

November 24, 2018 · by · in Copyright, Derivative Liability

[Oops, this post got stuck in my draft folder. Better late than never.]

Whew, this case will never end. I’ve blogged it a few times over the years, including a ruling not that long ago. It’s showing up again on the blog because a 512(f) claim survived a motion to dismiss. Even more unusually, the 512(f) claim is based on a counternotice, not a takedown notice. I’m sure I’m forgetting something, but I can’t recall a 512(f) case over a counternotice that’s gotten this far.

The underlying dispute relates to files, posted by Handshoe, that allegedly infringe Leary’s Canadian copyrights. Leary sent takedown notices on the files. Handshoe counternoticed. Leary now claims the counternotices were bogus. The court summarizes:

Leary’s § 512(f) claims against Handshoe involve two instances in which Handshoe allegedly submitted counternotifications, one to YouTube on July 14, 2014, and another to AWS in late January 2016. Leary alleges that Handshoe swore under penalty of perjury that he held a good faith belief that his use of Leary’s copyrighted images did not constitute copyright infringement, even though Handshoe purportedly knew that he was infringing Leary’s copyright in the foreign works.  claims that he was damaged in having to research and respond to the counter-notifications and in having his copyrighted works continue to be used in an infringing manner. Liberally construing Leary’s pro se pleadings and assuming all well-pleaded facts are true, his two misrepresentation claims under § 512(f) contain sufficient factual matter to state plausible claims for relief.

I suspect the judge bent the standards in light of Leary’s pro se status. I also doubt Leary’s claims will make it much further, pro se or not.

Despite the court’s statement of plausibility, the court (citing 17 USC 507(b)) says that the applicable statute of limitations for 512(f) claims is 3 years. As a result, the 2014 counternotice is beyond the SOL. The court allows the claim over the 2016 counternotice to proceed.

Case citation: Handshoe v. Perret, 2018 WL 5316361 (S.D. Miss. Oct. 26, 2018)

Prior Posts on Section 512(f):

* Another 512(f) Case Fails–Handshoe v. Perret
* 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