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)
UPDATE: Plot twist! The Fourth Amended Complaint (seriously, judge?) partially revives the case. The direct infringement claim still fails:
Plaintiff has again 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.” At best, Defendants’ Creator Academy instructs creators how to upload music generally, but it is the users themselves that select the actual songs for use in the videos (id. ¶ 33 (stating that “in the settings menu, Likee allows users to upload music to the platform” (emphasis added))). There are no allegations that Defendants, on Defendants’ own terms, cull Plaintiff’s copyrighted works for subsequent upload, download, transmission, or storage as opposed to automatic inclusion into the platform. While Likee differentiates between licensed music and original music, such cataloging does not arise to the active participation necessary to establish volitional conduct….
While Likee provides guidance on how to upload 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….
the allegation that Defendants encourage uploading better music does not mean Defendants encourage uploading Plaintiff’s copyrighted music. And while Plaintiff alleges that it promotes infringing content, including HouseofBrooklyn’s, it is unable to identify a single promoted video that infringes Plaintiff’s copyrighted works.
However, the contributory infringement claim gets revived:
New to the fourth amended complaint, in addition to identifying a handful of specific examples of infringement of which it is aware, Plaintiff alleges that it made 1,516 individual takedown requests, and Defendant has responded to only 56 percent of the requests. These allegations support a reasonable inference of Bigo’s specific knowledge of the infringement.
I’d like to know a lot more about those takedown requests. E.g., are they legit? how specific were they? are we sure they weren’t honored? why wasn’t this raised before the 4th amended complaint? However, those questions will get pushed to summary judgment. If the plaintiff can’t deliver the goods on this representation, at minimum the judge should fee-shift to the plaintiff.
The court also says the DMCA safe harbor defense isn’t resolvable on the motion to dismiss. “Whether Defendant meets these  elements is an intensely factual question, the answer to which is not obvious from the pleadings.” Another issue for summary judgment.
The plaintiffs filed a fifth amended complaint that the judge ignored for violating court procedure rules. But a 5th amended complaint demonstrates how the labels litigate. They will keep coming until they win or they wear down the defense–no expense spared. Reviving the case on the 4th Amended Complaint is no easy feat, so kudos to them, but going through that many iterations illustrates a deeper pathology.
BMG Rts. Mgmt. (US) LLC v. Joyy Inc., 2:22-cv-01578-MCS-RAO (C.D. Cal. Feb. 12, 2024)