512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center

This is a long-running and complex copyright takedown dispute that has been triggering my Westlaw alerts for years. I only blogged it once, in 2017, when the 512(f) claim survived a motion to dismiss. At that time, I wrote “given 512(f)’s track record, Johnson faces long odds of getting a judgment in her favor.” Indeed, she lost the claim on summary judgment. She appealed it to the 11th Circuit, where a short per curiam opinion dispatches it.

Citing the Lenz case, the court says that DMCA takedown senders must consider fair use before sending their notices. While that’s swell, it doesn’t mean anything in practice. In a prior blog post, I posited this hypothetical deposition transcript:

Q: Did you consider fair use?
A: Yes
Q: What steps did you take to evaluate the possibility of fair use?
A: I thought about it and decided it probably didn’t apply

So long as 512(f) turns on the sender’s subjective good faith, the sender automatically defeats a 512(f) claim with a deposition transcript like this. That’s pretty much what happened in this case:

NDCC’s counsel submitted affidavits testifying that they conducted pre-filing investigations on whether Johnson’s posts infringed or if they constituted fair use. The first counsel, Thomas Sadaka [now disbarred?], investigated and ultimately determined that “Johnson’s YouTube videos and website videos [ ] infring[ed] Paula White Ministries’ copyrights” and “there was a good faith basis to bring a lawsuit to protect [PMW’s] copyrights.” A second, different counsel, Vanessa Braeley [is this her?], stated that “[h]aving concluded that Ms. Johnson’s use was infringing and was not a fair use, I submitted a Takedown Notice to YouTube on behalf of PMW.” Thus, NDCC, by relying on their counsels’ investigations and opinions, had a reasonable good faith belief that Johnson’s videos were infringing and did not constitute fair use prior to filing the takedown notices.

In other words, two different lawyers said they thought about fair use and decided it didn’t apply. I had a tough time validating that either attorney had any expertise in copyright law, but fair use bona fides apparently aren’t required. In response to the lawyers’ opinions, the plaintiff called BS. From her deposition:

Question. “Well … there could be another option, couldn’t there, Ms. Johnson? She could have considered the fair use doctrine and come to the conclusion that your use was not fair use. Isn’t that an alternative as well?”

Answer. “Yes. But if she came to that conclusion, then I’d have to say that she doesn’t know much about copyright infringement then…”

Let’s assume Ms. Johnson is right, and the NDCC’s lawyers didn’t know a damn thing about copyright law or fair use. This court, like all the others, says 🤷‍♀️. If the sender thought about fair use, even in  the least credible way possible, the 512(f) claim will fail. As it did here.

I don’t know if the Senate Judiciary Committee will keep holding hearings on DMCA reform. Due to the election run-up, there isn’t much capacity for more hearings. Still, a hearing on 512(f) would be helpful. Right now, it’s essentially unwinnable. Without it, copyright owners can freely send dubious takedown notices with no accountability, which lays the foundation for abusive takedowns.

Case citation: Johnson v. New Destiny Christian Center Church, 2020 WL 5289881 (11th Cir. Sept. 4, 2020)

Prior Posts on Section 512(f):

* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* 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–Lenz v. Universal
* 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
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* 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
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* 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