Another Copyright Owner Learns Why It’s Better to Send DMCA Takedown Notices Before Suing–BMG v. Likee

Likee is a TikTok-like app that allows users to publish short videos, often set to music. Without sending DMCA takedown notices, BMG sued it for direct and contributory copyright infringement. The court dismisses those claims.

Direct Infringement. The court says Likee didn’t engage in volitional conduct:

Plaintiff has failed to establish the necessary causal nexus between Defendants’ conduct and its users’ illegal copying of Plaintiff’s copyrighted works. For one, Plaintiff does not allege that Defendants have “selected any material for upload, download, transmission, or storage.”….There are no allegations that Defendants, on its own terms, cull Plaintiff’s copyrighted works for subsequent upload, download, transmission, or storage as opposed to automatic inclusion into the platform…

Likewise, the allegations do not support a finding that Defendants exercise control other than by general operation of its website. As in Zillow, it is the users themselves “that select and upload every” work. While Likee provides guidance on how to upload copyrighted music and ostensibly copies those songs onto the platform at the direction of its users, Defendants’ operation of Likee does not constitute the kind of intervening act giving rise to volitional conduct….

Plaintiff alleges that the Creator Academy advises creators “that ‘better music’ will help them go viral,” but the term “better music” on its own is at best nebulous. Plaintiff does not make any connection between “better music” and copyrighted music, let alone Plaintiff’s copyrighted works. In other words, the allegation that Defendants encourage uploading better music does not mean Defendants encourage uploading Plaintiff’s copyrighted music.

Contributory Infringement. The plaintiff didn’t properly allege actual knowledge: “While Plaintiff identifies a handful of specific examples of infringement that it is aware of, Plaintiff fails to identify any individual copyrighted song that Defendants knew was being infringed. Without more, the allegations support only Bigo’s generalized knowledge of the possibility of infringement.”

DMCA. “Plaintiff confirmed that it did not issue any DMCA-compliant takedown notice to Defendants for any individual video.” Instead, it asked for discovery to look for evidence that Likee knew of infringing videos. The court says no, telling the plaintiff to try submitting DMCA takedown notices and see what happens. Although the DMCA 512 safe harbor isn’t compulsory for either plaintiffs and defendants, it’s interesting to see the court treat it as an effectively mandatory step in an online infringement case.

Of course, we all know what will happen if the plaintiff submits DMCA takedown notices….Likee will expeditiously remove the videos and there will be no lawsuit. BMG, of course, knew that but clearly hoped to find a litigation bypass to sending takedown notices. The court closed the door on that bypass–as it should.

Case Citation: BMG Rts. Mgmt. (US) LLC v. Joyy Inc., 2022 WL 17578247 (C.D. Cal. Dec. 5, 2022)