How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)

On Monday, I’m participating in a Copyright Office workshop on Section 512. The workshop supports the Copyright Office’s long-pending Section 512 report, which started in 2015 but stalled out in 2017. To freshen up the project, the workshop will cover developments since 2017. Over 50 “speakers” are participating in the panels, and each has been given a total of 45 *SECONDS* to make introductory remarks. I do talk fast…but not that fast!

My incredibly brief remarks will address the caselaw updates on Section 512(f) since 2017. To do this, my RA and I reviewed all of the 512(f) rulings we could find since Jan. 1, 2017. (If you think we missed anything, please let me know!). The rundown:

Cases

[Note: where a case didn’t do more than refer to Section 512(f), I said it had a “non-substantive reference.”]

BMaddox Enters., LLC v. Oskouie, 2017 U.S. Dist. LEXIS 146766 (S.D.N.Y. Sept. 8, 2017). Non-substantive reference.

Columbia Trading Corp. v. Green Elecs., LLC., 2018 U.S. Dist. LEXIS 129048 (D.N.J. July 27, 2018). 512(f) claim failed because it didn’t properly allege a DMCA takedown notice.

Consumer Opinion LLC v. Frankfort News Corp., 2017 U.S. Dist. LEXIS 159251 (N.D. Cal. Sept. 27, 2017). Non-substantive reference.

DT Fashion LLC v. Cline, 2018 U.S. Dist. LEXIS 11654 (S.D. Ohio. Jan. 24, 2018). Non-substantive reference.

Handshoe v. Perret, 270 F.Supp.3d 915 (S.D. Miss. 2017). The plaintiff had Article III standing, but most of his claims lacked statutory standing as an individual because the takedown notices were directed to his corporation’s content. Two 512(f) claims survived the motion to dismiss. However, one claim was dismissed in Handshoe v. Perrett, 1:15-cv-00382-HSO-JCG (S.D. Miss. Sept. 13, 2018) because the takedown notice sender did not have the requisite bad faith. In a related ruling, in Handshoe v. Perret, 2018 WL 5316361 (S.D. Miss. Oct. 26, 2018), a 512(f) claim based on counternotice survived a motion to dismiss. That ruling also confirms that 512(f) claims have a three year statute of limitation.

Hosseinzadeh v. Klein, 276 F.Supp.3d 34 (S.D.N.Y. 2017). 512(f) claim failed against counternotice when the content qualified for fair use and the defendant had good faith.

ISE Entm’t Corp. v. Longarzo, 2018 U.S. Dist. LEXIS 40755 (C.D. Cal. Feb. 2, 2018). 512(f) claim survived a motion to dismiss. The court says “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).” The court permitted the claim even though the 512(f) plaintiff didn’t know if the takedown notices referenced copyright issues, and the court accepted the complaint’s allegations of bad faith. However, the lawsuit failed in ISE Entm’t Corp v. Longarzo, 2018 U.S. Dist. LEXIS 208921 (C.D. Cal. Dec. 11, 2018) because the takedown notices weren’t DMCA notices.

Jinjit, Ltd. v. Jovani Fashion, Ltd., 2017 U.S. Dist. LEXIS 59027 (S.D.N.Y. March 28, 2017). Non-substantive reference.

Johnson v. New Destiny Christian Center Church, 2017 WL 3682357 (M.D. Fla. Aug. 25, 2017). This case has produced numerous rulings. In this ruling, the 512(f) claim survived a motion to dismiss. However, in Johnson v. New Destiny Christian Center Church, 2019 U.S. Dist. LEXIS 33513 (M.D. Fla. March 4, 2019), the court dismissed the 512(f) claim for lack of bad faith.

Kaniadakis v. Executive Board of Directors, 2018 WL 4568871 (M.D. Fla. Jan. 26, 2018). Non-substantive reference.

Kazakhstan v. Ketebaev, 2017 U.S. Dist. LEXIS 211198 (N.D. Cal. Dec. 21, 2017). Non-substantive reference (only quoting a different case).

Marketran, LLC v. Brooklyn Water Enterprises, Inc., 2017 WL 1304121 (S.D. Fla. Feb. 7, 2017). 512(f) claim survived motion to dismiss. The case voluntarily dismissed shortly thereafter.

Melendez v. Vaiana, 2017 WL 8183139 (C.D. Cal. Oct. 19, 2017). Non-substantive reference.

Mometrix Media, LLC v. LCR Publishing, LLC, 2018 Tex. App. LEXIS 9499 (Tex. Ct. App. Nov. 21, 2018). The court says it’s unclear if 512(f) preempts a state law tortious interference claim.

Monsarrat v. Zaiger, 2018 U.S. Dist. LEXIS 152002 (D. Mass. Aug. 13, 2018). Non-substantive reference.

Nakada Assocs v. City of El Monte, 2017 U.S. Dist. LEXIS 91755 (C.D. Cal. June 2, 2017). Non-substantive reference.

Shear Mobility, LLC v. Stoll, 2018 U.S. Dist. LEXIS 175521 (W.D.N.Y. Oct. 10, 2018). Non-substantive reference.

Stardock Sys. V. Reiche, 2018 U.S. Dist. LEXIS 222971 (N.D. Cal. Dec. 27, 2018). Non-substantive reference.

Stark Drive LLC v. Michael, 2018 U.S. Dist. LEXIS 198105 (N.D. Cal. Nov. 20, 2018). Non-substantive reference.

Stern v. Lavender, 319 F.Supp.3d 650 (S.D.N.Y. 2018). 512(f) claim failed because senders had good faith.

Stevens v. Vodka & Milk, LLC, 2018 U.S. Dist. LEXIS 43666 (S.D.N.Y. March 12, 2018). Section 512 preempts state tortious interference claims.

Weinberg v. Dirty World, LLC, 2017 WL 5665022 (C.D. Cal. April 24, 2017). 512(f) claim survived motion to dismiss. It appears this case subsequently voluntarily dismissed.

Williby v. Hearst Corp., 2017 U.S. Dist. LEXIS 106212 (N.D. Cal. July 10, 2017). Non-substantive reference.

Windstream Servs., LLC v. BMG Rights Mgmt. (US) LLC, 2017 U.S. Dist. LEXIS 58204 (S.D.N.Y. April 17, 2017). Non-substantive reference.

Zithromia Ltd. v. Gazeus Negocios De Internet SA, 2018 U.S. Dist. LEXIS 205704 (N.D. Cal. Dec. 5, 2018). Sending takedown notice didn’t confer personal jurisdiction for 512(f) claim.

Implications

Statistics. By my count, at least 25 cases have referenced Section 512(f) since January 1, 2017. Some of those cases produced multiple rulings. However, over half of the opinions didn’t substantively analyze 512(f) at all.

Results. Several rulings allowed Section 512(f) claims to survive a motion to dismiss. However, since January 1, 2017, I’m not aware of a single case where a 512(f) plaintiff won on the merits. (There are likely favorable settlements, such as Lenz, but those are beyond my scope).

Indeed, over the 21 years Section 512(f) has been on the books, I can think of only two times that a Section 512(f) plaintiff has achieved a final court ruling in its favor:

• Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1205 (N.D. Cal. 2004). The defendant subsequently settled for $125,000.
• Automattic Inc. v. Steiner, 2015 WL 1022655 (N.D. Cal. March 2, 2015). In a default judgment, the court awarded about $25,000 in damages. I don’t if Automattic collected any of the judgment.

[Again, if I’m forgetting anything, please let me know.]

In light of the Ninth Circuit’s Rossi decision, which said the statutory good faith requirement is determined subjectively, it’s unlikely 512(f) claims will find greater success in the future. That raises the obvious question of whether 512(f) is playing–or has the capacity to play–its statutorily contemplated role of motivating copyright owners to do their homework before benefiting from 512’s notice-and-takedown machinery. It’s hard to believe that copyright owners haven’t done adequate pre-notification homework only twice in 21 years.

Prior Posts on Section 512(f):

* Another Section 512(f) Case Fails–ISE v. Longarzo
* 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