Services Aren’t Liable for Ignoring the DMCA’s 512(g) Counternotification Procedures–Hopson v. Google
This case involves a UGC anime site called Gelbooru, run by Hopson. Rightsowners sent DMCA takedown notices targeting the site to Google. (Lumen has many takedown notices containing the word “Gelbooru”). Google stripped out the notices’ identifying information and forwarded the notices to Hopson. Google deindexed the site from its search index and issued warnings before searchers clicked on the search results for the site. Hopson counternoticed the takedown notices per 512(g), but Google didn’t budge. The court dismisses the lawsuit.
Failure to Honor Counternotice. Hopson claims that Google didn’t follow 512(g)’s preconditions. No matter. The court says Google’s “alleged failure to comply with § 512(g) does not create direct liability for any violation of plaintiffs’ rights. It merely denies Google a safe harbor defense should plaintiffs bring some other claim against the ISP for removing allegedly infringing material, such as a state contract or tort law claim.” Cites to Martin v. Tumblr.
As I wrote with the Martin case:
no service ever needs the 512(g) safe harbor because other legal doctrines foreclose liability. For example, Tumblr’s TOS contained a provision saying “Tumblr may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement” (again, this is essentially dictated by the DMCA preconditions) and for any/no reason. So this case highlights why 512(g) is functionally irrelevant in court cases, though many services voluntarily choose to process and honor counternotices as contemplated by 512(g) despite its legal irrelevance.
So the court rejects any affirmative cause of action predicated on 512(g), and unsurprisingly, the other claims fail on their lack of merits.
Deindexing. Claims based on deindexing are barred by the First Amendment:
[the] claims against Google challenge its editorial judgments about what to publish or not publish — whether by restricting and filtering the website’s contents or filtering search results. Thus, numerous district courts have concluded that such activity is protected by the First Amendment.
The court says it’s unclear if Section 230 also protects deindexing decisions in the Seventh Circuit, citing Huon v. Denton and Chicago Lawyers v. Craigslist. While the Seventh Circuit has made an unnecessary and unhelpful mess of its Section 230 jurisprudence, that’s also inconsequential in this case. The court’s ruling instead reiterates that content removal decisions are protected by more than Section 230.
UPDATE: Also potentially interesting: Cawthorn v. Nuan, 2023 WL 2758435 (SDNY April 3, 2023):
Defendant’s conduct was willful, and there is a need for deterrence of similar conduct by the defendant. Defendant abused the statutory DMCA notification process. In the Counter Notice, defendant stated, under penalty of perjury, that it had a good faith basis to believe the takedown was a mistake. But, rather than appearing in the instant action to assert any potential defense, defendant failed to make any appearance. Accordingly, the Court concludes that plaintiff is entitled to an award of $150,000.00 in statutory damages.