Claim Over Takedown Notice Triggers Anti-SLAPP Law & a Fee Shift–Complex v. X17 [EDITED TO CORRECT A MAJOR ERROR]
*** CRITICAL UPDATE***
Ugh, I’m embarrassed to admit that I made a serious error in reading the opinion. I cannot edit the post to correct the error. The mistake infects the entire post and the main point. I’m leaving up the post so you can understand my error, but I need to correct things here.
The defendant’s anti-SLAPP motion ONLY applied to the contract interference claim. This fixes two major concerns I had. First, the anti-SLAPP motion never reached the 512(f) claim. Second, the fact that 512(f) preempts the contract interference claim shows why the plaintiff wasn’t able to rebut the prima facie anti-SLAPP motion. We never got any further information on the 512(f) claim because the case settled before it was addressed. So this is still a bad ruling for 512(f), but not in the way I described. The takeaways are:
1) Takedown notices can still qualify as speech/petitions protected by anti-SLAPP laws
2) If you bring a 512(f) claim, be careful about bringing any parallel state claims, which may trigger anti-SLAPP motions
3) 512(f) cases still don’t win in courts (though this case didn’t advance or disprove that proposition)
Major errors do happen on the blog occasionally, but they are painful each time. I’m so sorry about my mistake.
This ruling is from March but it just showed up in my Westlaw alerts. Oy, it makes my head hurt.
The plaintiff, Complex, runs a YouTube channel with 2.4M subscribers. The defendant, X17, publishes celebrity-related videos and photos. X17 believed that Complex’s videos infringed its copyrights. As a result, it sent at least 6 DMCA takedown notices to YouTube. YouTube removed those videos, froze Complex’s ability to upload new videos or edit its page, and threatened to terminate Complex from its service.
Complex sued X17 for sending wrongful takedown notices (512(f)) and contract interference. Complex’s lawsuit went poorly. It lost both claims and was ordered to pay X17’s attorneys’ fees. Ugh.
The court says that X17’s DMCA takedown notices to YouTube are protected by California’s anti-SLAPP law. The court says “filing of a takedown notices [sic] is constitutionally protected speech.” This copyright dispute was a matter of public interest because it affected Complex’s 2.4M YouTube subscribers. The court distinguishes Lenz as more of a private dispute. Because the court deems Complex’s 512(f) claim a SLAPP, it awards attorneys’ fees to the defense.
This particular dispute put me in a quandary. I’m a fan of broad anti-SLAPP laws. I’m also skeptical of overreaching copyright takedown notices, and I wish 512(f) had more teeth. Unfortunately, this lawsuit put those two dynamics in tension. To give more berth to anti-SLAPP laws will chill 512(f); to give more berth to 512(f) will limit anti-SLAPP protection. Decisions, decisions.
Unfortunately, this tension was exacerbated by two confusing aspects of the court’s opinion.
First, once the defendant establishes a prima facie case of qualifying for anti-SLAPP protection, the burden shifts to the plaintiff to show its prima facie case. Bizarrely, the court skipped that step entirely. Instead, after the court found this was a prima facie SLAPP, it simply stopped talking. I might feel better about my quandary if Complex had been given the chance to show that the takedown notices were in fact bogus. If it was, the anti-SLAPP motion should have been denied.
Second, the general law is that state anti-SLAPP laws don’t apply to federal claims in federal court. For example, California’s anti-SLAPP law doesn’t apply to federal copyright claims. I’d like to see that changed–I’ve been an advocate for a federal anti-SLAPP law for a decade–but under current law I believe this principle should have applied to the 512(f) claim. I’m not sure why the court didn’t address this issue.
The court also rejects the contract interference claim. “Numerous courts within the 9th Circuit have held that 17 U.S.C. § 512(f) of the DMCA preempts state law claims based on DMCA takedown notifications.” Cites to Online Policy Group, Lenz, and Amaretto. I blogged more on this issue last year (regarding a ruling this court didn’t cite).
We don’t get a definitive denouement to this case or learn the value of the fee shift award. In June, the case settled without any further courtroom developments.
This ruling reinforces how Section 512(f) is misconstructed. Why would anyone ever bring a 512(f) claim? It almost never wins in court; and this ruling exposes the risk that a 512(f) claim could force the plaintiff to write a check to the defendant. RIP 512(f).
Case citation: Complex Media, Inc. v. X17, Inc., 2019 WL 2896117 (C.D. Cal. Mach 4, 2019).
Prior Posts on Section 512(f):
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* 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