Another 512(f) Claim Fails–Ningbo Mizhihe v Doe

May 2, 2020 · by · in Copyright, Derivative Liability, E-Commerce

The plaintiff is a Chinese vendor that claims copyright in unicorn images (see depictions on the right). The defendants are also vendors using unicorn images. The plaintiff accuses the defendants of infringing the plaintiff’s copyrights. In support of that, the plaintiff sent takedown notices to Amazon targeting the defendants’ listings, which resulted in Amazon disabling the defendants’ Amazon storefront. The plaintiff also sued the defendants for copyright infringement. In response, the defendants initiated a 512(f) counterclaim. It goes exactly how you’d expect.

The defendants claimed that the plaintiff’s copyright registrations were obtained via inaccurate representations to the Copyright Office. Even if true, the court says this doesn’t affect whether the plaintiff’s representations to Amazon were correct.

The plaintiff also lacked actual knowledge of any deficiencies in its takedown notices to Amazon. “[A]side from the conclusory allegations as to Plaintiff ‘knowingly’ making misrepresentations, [the defendants’] contention effectively is one accusing Plaintiff of failing to perform an adequate investigation of the available prior art, which sounds merely in negligence.” 512(f) does not apply to takedown notices sent negligently.

Thus, the 512(f) counterclaim fails. The unicorn theme provides an apropos metaphor for this post because successful 512(f) claims are as rare as actual unicorns.

Case citation: Ningbo Mizhihe I&E Co. Ltd. v. Does 1-200, 2020 WL 2086216 (S.D.N.Y. April 30, 2020). The initial complaint.

Prior Posts on Section 512(f):

* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* 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