if all of plaintiff’s requested ex parte relief were to be granted, plaintiff would at the outset be entitled to broad discovery with serious consequences to defendants. Plaintiff would first be authorized to serve expedited discovery on the Financial Institutions, who would be obligated to provide all known e-mail addresses and mailing addresses for defendants, as well as information relating to defendants’ assets and accounts “regardless of the hosting platform or institution.” Having received that information, and still without notice to any defendant, plaintiff could then freeze the assets maintained in any of the accounts identified through expedited discovery of 100 different international defendants. Acknowledging that plaintiff’s request for an asset restraint is in no way cabined only to accounts through which defendants sell the allegedly infringing products, this restraint would presumably apply to all of defendants’ accounts and assets regardless of their relation to this case. Only after discovery has been provided and the assets frozen would plaintiff notify any of the defendants of the existence of this action, through a proposed procedure inconsistent with the requirements of international service under the Hague Convention.

Judge Buchwald wraps up this overview of the SAD Scheme with a conclusion that seems obvious to me but shockingly isn’t yet obvious to all judges: “It may not be an exaggeration to say that once plaintiff’s requested relief has been authorized, the case is effectively over.”

Given the tenor of this overview, unsurprisingly the judge rejects the case’s “merits.”

On the design patent claim, Judge Buchwald says the “plaintiff has failed to show a likelihood of success on the merits for the simple reason that plaintiff has chosen not to submit its own product nor a physical example of any of defendants’ products for comparison.” The plaintiff tried a standard SAD Scheme trick of placing orders, taking screenshots, and then canceling the orders. The screenshots aren’t enough for the judge to “make a meaningful comparison sufficient to support the ‘extraordinary and drastic’ relief that plaintiff seeks.” She explains why test buys are needed to satisfy the Egyptian Goddess standard:

any existing differences between the products sold by defendants and those sold by plaintiff are of paramount importance. In this context, particularly given that plaintiff asserts design patent claims against 100 separate defendants, the Court is unable to determine from screenshots alone that plaintiff has satisfied the ordinary observer test and is likely to succeed on its design patent claim against each of the 100 defendants.

Click on image to play the GIF

In a footnote, she adds some lemon juice to the paper cut: “The position in which plaintiff finds itself is a self-inflicted wound. Plaintiff made a conscious choice to cancel each of the orders it placed, thus depriving the Court of the ability to meaningfully compare the products.”

#TestBuysOrBust.

With respect to the copyright claim, the plaintiff claims copyrights in the marketing photos. However, due to the high volume of defendants, the case preparation appears suspect: “plaintiff’s exhibits reflect that 22 of the 100 defendants have not violated plaintiff’s copyright.” These errors are enough to inhibit the judge from granting any requested copyright relief.

In a footnote, she adds: “if the plaintiff’s concern was truly in protecting their copyright, the Digital Millenium Copyright Act contemplates that copyright holders may enforce their copyright directly through service providers like Amazon.” I’m not sure we should fully celebrate the DMCA’s remedial powers here, but the DMCA’s notice-and-takedown option highlights what the plaintiff is trying to do here. Is the plaintiff trying to stop the sale of infringing items, or is it running a trolling campaign? The SAD Scheme is a widely preferred tool of choice for the latter; DMCA takedowns, not so much.

Judge Buchwald also questions the standard SAD Scheme argument for joinder. She points out that “the fact that plaintiff placed 99 separate orders to the same address in Manhattan undercuts the idea that defendants are related because the use of a single purchasing address would have placed defendants on notice that litigation was forthcoming.” This assumes that the order details reach the defendants even if the orders are canceled–I’m not sure if that’s true. In any case, the judge doesn’t act on her joinder concerns yet, but it seems like that will be a hurdle for the plaintiff.

Plaintiff’s TRO request denied.

I didn’t check to see if this is Judge Buchwald’s first SAD Scheme case, but either way, her strong and negative reactions to the scheme are commendable and, I hope, persuasive to her judicial colleagues.

Case Citation: CJB Global Imports, Ltd. v. Schedule A Defendants, 2026 WL 2517616 (S.D.N.Y. August 26, 2026).

* * *

BONUS: The Galleon Guild, Ltd. v. Schedule A Defendants, 2026 WL 2495610 (S.D. Fla. July 17, 2026). As usual, the court initially granted the SAD Scheme plaintiff’s requested ex parte TRO and allowed email service, followed by preliminary injunctions. Then, the case got reassigned to a new judge (Judge K. Michael Moore), and the plaintiff’s good times stopped.

The new judge inquired about jurisdiction, and the plaintiff’s answers sucked. First, the court rejects the “on information and belief” framing for the plaintiff’s fact claims, saying that a judge:

need not accept allegations made on information and belief where there is insufficient factual support to make those allegations plausible rather than just conclusory. Given that Plaintiff’s Complaint is largely full of the sort of generalized, form allegations that appear in many Schedule A complaints, the Court is not inclined to give credence to allegations made on information and belief

Second, the judge isn’t impressed with the plaintiff’s standard presentation of evidence by screenshots: “Plaintiff provides screenshots of order screens (which show orders that were not actually placed, let alone shipped into Florida) showing only that it seemed possible to place orders with Defendants that would ship to Florida.” Instead, to satisfy the Florida long-arm statute, the plaintiff must show that the defendant “actually sells trademark-infringing goods to Florida residents through his website.” #TestBuysOrBust.

The court reinforces that evidence of sales in Florida also may be required to satisfy Constitutional due process: “Where a defendant has merely existed on a website and has not consummated a sale into Florida, or even tried making a sale into Florida, there is no personal jurisdiction….[the court] is not holding a single sale into Florida would be sufficient to confer personal jurisdiction, only that Plaintiff has not plausibly alleged such a sale has occurred.”

While this case has reached its logical denouement, remember that the plaintiff long ago got the ex parte TRO, alternative service, and a preliminary injunction. In other words, a case that the court lacked jurisdiction to hear nevertheless caused a whole lot of judicially authorized damage anyway.

Prior Blog Posts on the SAD Scheme

• Every SAD Scheme Opinion Is Weird In Its Own Way–Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi
• Federal Circuit Rebuffs SAD Scheme Plaintiff–Shenzhen Jisu v. Annex A Defendants
• Court Rebuffs Emojico’s SAD Scheme TRO Request
• Seventh Circuit Limits Email Service to Chinese SAD Scheme Defendants–Kangol v. Hangzhou Silk
• SAD Scheme Defendant Gets Damages Payout from the Bond–Bright Head v. Schedule A Defendants
• Judge Shopping & Schedule A (Guest Blog Post)
• SAD Scheme Plaintiff Gets Default Win But Blows the Layup on Damages–Shenzen Huajie v. Shenzen Leyibei
• SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants
• A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants
• New Article Alert: “SAD Scheme Standing Orders”
• Greer Burns Law Firm Sanctioned for “Willfully Abusive” and “Egregious” SAD Scheme Judge-Shopping
• Schedule A: Ten Notable Developments in 2025 (Guest Blog Post)
• Second Circuit Rejects Email Service on Chinese Defendants in Baby Shark SAD Scheme Case
• 11th Circuit Sidesteps the SAD Scheme’s Problems–Ain Jeem v. Schedule A
• Another Shill Article Tries to Normalize the SAD Scheme
• Court Sanctions Plaintiff’s Lawyer for Unverified Claims That the Defendant Was Hiding–Guangzhou Youlan Technology Co. Ltd. v. Onbrill World
• SAD Scheme Cases Are a Cesspool of IP Owner Overreaches–Nike v. Quanzhou Yiyi Shoe Industry
• District of New Jersey Adopts SAD Scheme Standing Order
• Court “Sanctions” SAD Scheme Judge Shopping—Crimpit v. Schedule A Defendants
• Chicago-Kent SAD Scheme Symposium TOMORROW
• Amicus Brief Urges Seventh Circuit to Award Attorneys’ Fees in SAD Scheme Case–Louis Poulsen v. Lightzey
• Court Rejects Schedule A Claims Against Sellers of Compatible Parts/Accessories (Cross-Post)
• Judge Kness: the SAD Scheme “Should No Longer Be Perpetuated in Its Present Form”–Eicher Motors v. Schedule A Defendants
• SAD Scheme Lawyers Sanctioned for Judge-Shopping–Dongguan Deego v. Schedule A
• Judge Ranjan Cracks Down on SAD Scheme Cases
• Because the SAD Scheme Disregards Due Process, Errors Inevitably Ensue–Modlily v. Funlingo
• SAD Scheme-Style Case Falls Apart When the Defendant Appears in Court—King Spider v. Pandabuy
• Serial Copyright Plaintiff Lacks Standing to Enforce Third-Party Copyrights–Viral DRM v 7News
• Another N.D. Ill. Judge Balks at SAD Scheme Joinder–Zaful v. Schedule A Defendants
• Judge Rejects SAD Scheme Joinder–Toyota v. Schedule A Defendants
• Another Judge Balks at SAD Scheme Joinder–Xie v. Annex A
• Will Judges Become More Skeptical of Joinder in SAD Scheme Cases?–Dongguan Juyuan v. Schedule A
• SAD Scheme Leads to Another Massively Disproportionate Asset Freeze–Powell v. Schedule A
• Misjoinder Dooms SAD Scheme Patent Case–Wang v. Schedule A Defendants
• Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
• Judge Reconsiders SAD Scheme Ruling Against Online Marketplaces–Squishmallows v. Alibaba
• N.D. Cal. Judge Pushes Back on Copyright SAD Scheme Cases–Viral DRM v. YouTube Schedule A Defendants
• A Judge Enumerates a SAD Scheme Plaintiff’s Multiple Abuses, But Still Won’t Award Sanctions–Jiangsu Huari Webbing Leather v. Schedule A Defendants
• Why Online Marketplaces Don’t Do More to Combat the SAD Scheme–Squishmallows v. Alibaba
• SAD Scheme Cases Are Always Troubling–Betty’s Best v. Schedule A Defendants 
• Judge Pushes Back on SAD Scheme Sealing Requests
• Roblox Sanctioned for SAD Scheme Abuse–Roblox v. Schedule A Defendants
• Now Available: the Published Version of My SAD Scheme Article
• In a SAD Scheme Case, Court Rejects Injunction Over “Emoji” Trademark
• Schedule A (SAD Scheme) Plaintiff Sanctioned for “Fraud on the Court”–Xped v. Respect the Look
• My Comments to the USPTO About the SAD Scheme and Anticounterfeiting/Antipiracy Efforts
• My New Article on Abusive “Schedule A” IP Lawsuits Will Likely Leave You Angry
• If the Word “Emoji” is a Protectable Trademark, What Happens Next?–Emoji GmbH v. Schedule A Defendants
• My Declaration Identifying Emoji Co. GmbH as a Possible Trademark Troll

The post New York Judge Shuts Down a SAD Scheme TRO Request–CJB Global v. Schedule A Defendants appeared first on Technology & Marketing Law Blog.

Plaintiff Channel 781 News (“Channel 781”) is a YouTube-based news outlet focusing on local affairs in Waltham, Massachusetts. Channel 781 posted clips from Waltham municipal government meetings that it believed to be newsworthy. Channel 781 took these clips without permission from recordings of the meetings produced by Defendant Waltham Community Access Corporation (“WCAC”) for the city’s public access channel. The clips Channel 781 posted were accompanied by titles and captioning but otherwise consisted entirely of excerpts from WCAC’s recordings.

In September 2023, WCAC sent three notices to YouTube asking YouTube to take down fifteen of Channel 781’s clip videos on the basis that they infringed WCAC’s copyrights. YouTube complied and temporarily deactivated Channel 781’s account. Channel 781 subsequently sued WCAC under 17 U.S.C. § 512(f), alleging that WCAC failed to adequately consider that Channel 781’s videos were fair use and, thus, knowingly misrepresented in its takedown notices that it had a good faith belief that the videos were infringing.

It seems weird that anyone could restrict Channel 781’s ability to clip-farm videos of local government meetings. However, the videographer WCAC is an independent contractor to the local government, not the local government itself. This contractual arrangement interposes copyright interests into coverage of government functions. Unsurprisingly, WCAC then essentially uses its copyright ownership to act as a censorship proxy for the local government. Sad, but entirely predictable.

In a prior ruling, the court said Channel 781’s 512(f) claim survived WCAC’s motion to dismiss. Now, on summary judgment, the court dismisses the 512(f) claim. This becomes yet another 512(f) case that gets a little traction and then predictably goes splat.

The court adopts the Rossi standard, which means WCAC is liable for a 512(f) violation only if it subjectively believed its takedown notices were unjustified.

(In a footnote, the court disgrees with the Moonbug decision, treating 512(f)’s scienter requirement as negligence, saying that standard “appears to be inconsistent with the Ninth Circuit’s decisions in Rossi and Lenz”).

Applying this standard, the court holds that “no reasonable jury could find that WCAC failed to form a subjective good faith belief that the Channel 781 clip videos for which WCAC sent takedown notices did not constitute fair use.” The court explains:

Sheehan asked Wangler to assess whether Channel 781 had the right to post clips from WCAC’s recordings. To do so, Wangler read the email Kastorf sent to Sheehan about the fair use doctrine and watched a YouTube video on the same topic. He then emailed Sheehan that “[i]t’s possible [Channel] 781 … Zoom videos using short clips qualify as [f]air [u]se” but that “[w]hat does not qualify are the large number of videos taken directly from us and reproduced verbatim with zero editing or commentary.” He attached to his email a screenshot from the YouTube video he watched describing facts that make a use “less likely to qualify for fair use.” Wangler and Sheehan then agreed to send takedown notices only for the clip videos reproducing WCAC’s recordings with no editing or commentary except for the addition of a title. When Wangler later decided which videos to include in the takedown notices, he chose clip videos that consisted solely of excerpts from WCAC’s recordings, which he believed did not qualify for fair use protection. Given Wangler’s viewing of  YouTube video about fair use, his determination that some of Channel 781’s videos may have qualified as fair use while others did not, and the fact that WCAC only sent takedown notices for the latter set of videos, the record does not support a reasonable finding that WCAC failed to consider fair use or form a subjective good faith belief that the clip videos posted by Channel 781 were not fair use.

In light of Rossi, the fact that WCAC developed an overreaching fair use policy doesn’t support 512(f). “Channel 781’s arguments are a misguided effort to smuggle an objective reasonableness inquiry into the applicable subjective standard.” Per Lenz, WCAC did, in fact, consider fair use before sending takedown notices, so it satisfied the requirements:

Wangler expressly researched the fair use doctrine; made an effort to apply the doctrine to Channel 781’s clip videos; and determined before sending the takedown notices that the relevant videos were not fair use.

Channel 781 argued that WCAC took down its videos as part of a censorship agenda. The court says that motivation, even if true, would be irrelevant because WCAC properly considered the fair use considerations. The judge summarizes:

While Wangler’s fair use analysis may have been deficient, he did not intentionally fail to consider the possibility that Channel 781’s clip videos were fair use.

When I blogged the Lenz case over a decade ago, I wrote:

Let’s look at a hypothetical deposition transcript of a notice sender:

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

Where does a 512(f) plaintiff go from here? It seems like the sender can legitimately claim that they considered fair use, albeit not in a “searching or intensive” way. 512(f) case apparently over.

This case is an excellent illustration of that hypothetical transcript and the inevitable futility of most 512(f) cases.

In my opinion, the secret “villian” is this story is the Waltham local government, which outsourced the videographing to a third-party rather than treating government transparency as a social value that should be funded by taxpayers.

Case Citation: Channel 781 News v. Waltham Community Access Corporation, 2026 WL 2409846 (D. Mass. Aug. 18, 2026)

Prior Posts on Section 512(f)

* Do DMCA Takedown Notices Need to Expressly Refer to the Lack of Fair Use?–Take-Two v. PlayerAuctions
* Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices?
* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! –Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* 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

The post A 512(f) Case Survived a Motion to Dismiss. Guess What Happened Next–Channel 781 v. WCAC appeared first on Technology & Marketing Law Blog.

• it’s in the Western District of Texas, not the more typical N.D. Ill.
• it’s a copyright claim rather than the more typical trademark claim
• it’s against a single defendant, not dozens or hundreds of defendants
• it’s filed by the Valley & Summit Law firm, a relatively new firm (formed 2024) I haven’t encountered before. The firm’s principal says in her bio: “Ms. Ouyang started her IP practice by helping cross-border e-commerce stores defend draconian IP lawsuits. Over the years, Ms. Ouyang accumulated abundant experience in the fun area of IP litigation.” Switching sides and bringing SAD Scheme lawsuits is my idea of “fun” too.
• it’s in front of a new judge, Judge Andrew Bray Davis, who just took the bench in April. I’ve previously suggested that recent judges tend to be more skeptical of SAD Scheme cases than judges who have rubber-stamped them for years, though I’m not sure this opinion supports that hypothesis.

Add all of these differences up, and the resulting decision reads a little differently than other SAD Scheme opinions I’ve seen.

TRO Against Infringement

The plaintiff has copyright registrations for “two-dimensional artistic works entitled ‘Bohemian Printing.'” Here is the registered work (left) and an allegedly infringing product (right):

The defendant’s version look similar or identical to the plaintiff’s version except that it omits the outer ring. Judge Davis says “a side-by-side comparison of Plaintiff’s designs and Defendant’s wares reveals little—if any—in the way of differences between the two designs.”

Judge Davis says the alleged infringement could cause irreparable harm because “damages fail to address loss of control—as well as damage to reputation and goodwill.” It’s troubling to see a copyright injunction predicated on concerns about the plaintiff’s goodwill, which normally should be the province of trademark law. Even the reputation concern is dubious. The judge further conflates this copyright case with trademark law when considering the public interest, saying the “public also has a clear interest in not being deceived or confused as to the origin, source, or sponsorship of copyrighted products.” Copyright law generally has little to say about products’ origin, source, or sponsorship.

Asset Restraint

The plaintiff requested an order restraining the defendant’s assets to preserve money to cover damages. Judge Davis rejects the request because “Plaintiff seeks to freeze all of Defendant’s assets without either showing that they are all profits or offering a way to separate the profits from the damages.” Citing Grupo Mexicano, Judge Davis says that asset restraints can only preserve “the availability of equitable relief in a final judgment.” In copyright cases, profit disgorgement is an equitable remedy, but actual damages are not. Here, the pleadings don’t make an adequate distinction between the two: “Plaintiff offers no evidence of even the rough proportion of Defendant’s assets attributable to infringement, and without it the Court cannot tether an asset freeze to the ultimate equitable relief Plaintiff seeks—the infringer’s ‘additional profits.'”

But…the judge has no visibility into how the online marketplaces like Amazon will process the infringement-based TRO. If Amazon suspends the account based on the TRO, the assets will be frozen despite the court’s legal distinction.

In a subsequent ruling (on July 16), the court orders the asset freeze anyway based on the following report the plaintiff obtained from Amazon (through expedited discovery):

Defendant has grossed $641,077.99 from 15,136 individual unit sales of 11 different allegedly infringing products over an unspecified time period. Defendant’s U.S. Amazon account held a balance of $1,092.69 when Plaintiff submitted her most recent motion to the Court

Sealing Request

Judge Davis temporarily accepted the sealing request. It was lifted on July 27, 2026, only after the plaintiff voluntarily dismissed the defendant. This is what the sealed complaint looked like:

The post-dismissal unsealing is likely why I learned about the opinion only now.

Service Via Email

The Second and Seventh Circuits have limited email service to Chinese defendants. Nevertheless, based on Fifth Circuit precedent, Judge Davis says that email service is in his discretion, and he orders it. Sounds like a circuit split needs resolution?

It is unclear if/when service was ever effectuated. My guess is that the defendant learned of the lawsuit from Amazon’s asset freeze, and that triggered an extrajudicial settlement regardless of service.

Request for Expedited Discovery

Judge Davis grants that request too.

Bond

The judge approves a $5k bond, which seems quite low based on what the judge knew at the time. I’ve lamented before about the lack of guidelines for bond-setting in ex parte cases.

The “Addendum”

The opinion includes this unusual passage:

Cases like this one requesting ex parte restraint and expedited discovery under seal—often against numerous defendants listed on a “Schedule A”—are being filed at pace throughout the federal courts. See Eric Goldman, A Sad Scheme of Abusive Intellectual Property Litigation, 123 COLUM. L. REV. 183, 193–202 (2023) (dissecting the proliferation of Schedule A cases and their legal shortcomings). For good reason, some courts have found many of these requests to fall short of the clear letter of the law. See, e.g., Price v. Individuals, P’ships, & Unincorporated Ass’ns Identified on Schedule A., 821 F. Supp. 3d 1315 (M.D. Fla. 2026) (Mizelle, J.).

Because this specific case involves only a single defendant, it appears to avoid many of the pitfalls present in Schedule A cases. But it is difficult to be sure. “The whole point of our adversarial legal system is that the robust exchange of competing views helps ensure the discovery of truth and avoid error.” United States v. Quintanilla-Matamoros, 164 F.4th 366, 375 (5th Cir. 2026) (Ho, J., concurring) (cleaned up). Yet Plaintiff in this case, like the plaintiffs in the Schedule A cases, not only demands emergency relief outside of the adversarial process, but likely anticipates seeking a default judgment that is also outside the adversarial process. In these circumstances, it is imperative for courts not only to be vigilant that any relief awarded is lawful, but to be willing to reconsider—sua sponte if necessary—relief already awarded if that relief should not have been granted in the first place.

But what if the TRO causes the case to “settle” before the judge gets another crack at it to fix any past errors? The case settled on July 27, 11 days after the court approved the Amazon asset freeze.

I wasn’t quite sure what to make of this addendum. Was the judge issuing a warning to the plaintiff? Leaving a note to himself? Something else?

Also, the judge says courts must be “vigilant that any relief awarded is lawful” in ex parte proceedings. Does this opinion adequately demonstrate such vigilance?

Implications

Given the plaintiff and defendant are both in China, I didn’t see any clear reason why the case was filed in W.D. Tex. instead of alternative venues, such as California (where the plaintiff’s lawyers are based) or Illinois (where most SAD Scheme cases are litigated). This looks like forum-shopping, but why W.D.Tex.?

This is another SAD Scheme case between Chinese plaintiffs and defendants, taking place in US courts. The Chinese plaintiffs prefer the SAD Scheme because US courts will disregard the rule of law even more than Chinese courts would.

Given that this lawsuit was against a single defendant and was not a high volume operation like a typical SAD Scheme, I didn’t see any legitimate reason why the plaintiff chose the SAD Scheme template over the standard copyright infringement playbook. To me, it’s another datapoint illustrating how the SAD Scheme is functionally displacing all IP litigation. This is because plaintiffs get better outcomes via the SAD Scheme than than they would get from the standard package of rights actually conferred to them via IP and civil procedure law. As the maxim goes, plaintiffs will keep doing it so long as it works. In this case, despite the judge’s quirky addendum, the plaintiff got essentially everything they asked for. So why wouldn’t plaintiffs keep the good times rolling?

Reflecting the case’s novelty, at least to him, Judge Davis goes through most of the plaintiff’s arguments in greater-than-average detail. Yet, as is typical with ex parte proceedings, he ultimately sides with the plaintiff on most questions. Judge Davis correctly spotted some of the weak spots of the SAD Scheme, and yet arguably the scheme sucked him in anyway.

Case Citation: Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi, 2026 WL 2294410 (W.D. Tex. June 26, 2026).

Prior Blog Posts on the SAD Scheme

• Federal Circuit Rebuffs SAD Scheme Plaintiff–Shenzhen Jisu v. Annex A Defendants
• Court Rebuffs Emojico’s SAD Scheme TRO Request
• Seventh Circuit Limits Email Service to Chinese SAD Scheme Defendants–Kangol v. Hangzhou Silk
• SAD Scheme Defendant Gets Damages Payout from the Bond–Bright Head v. Schedule A Defendants
• Judge Shopping & Schedule A (Guest Blog Post)
• SAD Scheme Plaintiff Gets Default Win But Blows the Layup on Damages–Shenzen Huajie v. Shenzen Leyibei
• SAD Scheme Copyright Plaintiff Must Compensate Defendants–Shenzhen Langmi v. Schedule A Defendants
• A “But They’re ‘Counterfeiters’!” Argument Doesn’t Clinch a SAD Scheme TRO–Emojico v. Schedule A Defendants
• New Article Alert: “SAD Scheme Standing Orders”
• Greer Burns Law Firm Sanctioned for “Willfully Abusive” and “Egregious” SAD Scheme Judge-Shopping
• Schedule A: Ten Notable Developments in 2025 (Guest Blog Post)
• Second Circuit Rejects Email Service on Chinese Defendants in Baby Shark SAD Scheme Case
• 11th Circuit Sidesteps the SAD Scheme’s Problems–Ain Jeem v. Schedule A
• Another Shill Article Tries to Normalize the SAD Scheme
• Court Sanctions Plaintiff’s Lawyer for Unverified Claims That the Defendant Was Hiding–Guangzhou Youlan Technology Co. Ltd. v. Onbrill World
• SAD Scheme Cases Are a Cesspool of IP Owner Overreaches–Nike v. Quanzhou Yiyi Shoe Industry
• District of New Jersey Adopts SAD Scheme Standing Order
• Court “Sanctions” SAD Scheme Judge Shopping—Crimpit v. Schedule A Defendants
• Chicago-Kent SAD Scheme Symposium TOMORROW
• Amicus Brief Urges Seventh Circuit to Award Attorneys’ Fees in SAD Scheme Case–Louis Poulsen v. Lightzey
• Court Rejects Schedule A Claims Against Sellers of Compatible Parts/Accessories (Cross-Post)
• Judge Kness: the SAD Scheme “Should No Longer Be Perpetuated in Its Present Form”–Eicher Motors v. Schedule A Defendants
• SAD Scheme Lawyers Sanctioned for Judge-Shopping–Dongguan Deego v. Schedule A
• Judge Ranjan Cracks Down on SAD Scheme Cases
• Because the SAD Scheme Disregards Due Process, Errors Inevitably Ensue–Modlily v. Funlingo
• SAD Scheme-Style Case Falls Apart When the Defendant Appears in Court—King Spider v. Pandabuy
• Serial Copyright Plaintiff Lacks Standing to Enforce Third-Party Copyrights–Viral DRM v 7News
• Another N.D. Ill. Judge Balks at SAD Scheme Joinder–Zaful v. Schedule A Defendants
• Judge Rejects SAD Scheme Joinder–Toyota v. Schedule A Defendants
• Another Judge Balks at SAD Scheme Joinder–Xie v. Annex A
• Will Judges Become More Skeptical of Joinder in SAD Scheme Cases?–Dongguan Juyuan v. Schedule A
• SAD Scheme Leads to Another Massively Disproportionate Asset Freeze–Powell v. Schedule A
• Misjoinder Dooms SAD Scheme Patent Case–Wang v. Schedule A Defendants
• Judge Hammers SEC for Lying to Get an Ex Parte TRO–SEC v. Digital Licensing
• Judge Reconsiders SAD Scheme Ruling Against Online Marketplaces–Squishmallows v. Alibaba
• N.D. Cal. Judge Pushes Back on Copyright SAD Scheme Cases–Viral DRM v. YouTube Schedule A Defendants
• A Judge Enumerates a SAD Scheme Plaintiff’s Multiple Abuses, But Still Won’t Award Sanctions–Jiangsu Huari Webbing Leather v. Schedule A Defendants
• Why Online Marketplaces Don’t Do More to Combat the SAD Scheme–Squishmallows v. Alibaba
• SAD Scheme Cases Are Always Troubling–Betty’s Best v. Schedule A Defendants 
• Judge Pushes Back on SAD Scheme Sealing Requests
• Roblox Sanctioned for SAD Scheme Abuse–Roblox v. Schedule A Defendants
• Now Available: the Published Version of My SAD Scheme Article
• In a SAD Scheme Case, Court Rejects Injunction Over “Emoji” Trademark
• Schedule A (SAD Scheme) Plaintiff Sanctioned for “Fraud on the Court”–Xped v. Respect the Look
• My Comments to the USPTO About the SAD Scheme and Anticounterfeiting/Antipiracy Efforts
• My New Article on Abusive “Schedule A” IP Lawsuits Will Likely Leave You Angry
• If the Word “Emoji” is a Protectable Trademark, What Happens Next?–Emoji GmbH v. Schedule A Defendants
• My Declaration Identifying Emoji Co. GmbH as a Possible Trademark Troll

The post Every SAD Scheme Opinion Is Weird In Its Own Way–Cai v. Chaozhoushi Yitong Dianzi Shangwu Youxiangongsi appeared first on Technology & Marketing Law Blog.

Last month, while sitting at Amsterdam’s Schiphol Airport, a passenger typed www.annefrankmanuscripten.org on her laptop to look up the website at issue in the latest judgment by the Court of Justice of the European Union (CJEU) on geoblocking—the Anne Frank Fonds judgment. The retrieved webpage notified her that “due to copyright considerations,” the content, a scholarly edition of Anne Frank manuscripts, was not available to users connecting from the Netherlands.

Using a VPN service, she connected through a server in Belgium. This time the content webpage appeared, asking her to confirm that she was located in one of the listed “public domain countries.” The page warned her that if she was not located in one of those countries, she was “circumventing protection measures” and possibly “infringing copyrights.”

Had she misrepresented her location and confirmed that she was connecting from Belgium, presumably she could have accessed the content, even though she was in the Netherlands, which is not one of the public domain countries of the publication. The content is still protected by copyright in the Netherlands, where the provider of the scholarly edition has no license to make the content available to the public.

The CJEU judgment in Anne Frank Fonds does not address the liability of the cyber-traveling passenger. Instead, it concerns the liability of other actors in the story—the providers of the content and, in the abstract, a VPN provider.

Given the trajectory of prior CJEU judgments that have discussed geoblocking, and the opinion of the Advocate General in this case, the CJEU’s holdings in Anne Frank Fonds are not surprising. Under EU law, a content provider is not liable for copyright infringement by communicating a work to the public in a country where the work is still protected by copyright and for which the provider has no license, if the provider uses an effective–meaning “state of the art”–geoblocking measure. In such a case, the provider is not communicating to the public in the geoblocked country, even if Internet users can circumvent the geoblocking measure with a VPN or similar service. If the geoblocking measure is not effective and therefore a copyright-infringing communication to the public does take place in the country where the work is still protected by copyright, that communication is attributable to the provider of the content and not to the provider of the VPN or similar service.

Several aspects of the Anne Frank Fonds judgment deserve thorough analysis. At the global level, the judgment might raise concerns that it signals the end of a free and open Internet, legitimizes the balkanization of the Internet, and marks a new era of territorialization of the Internet. But none of these trends are new or surprising. In fact, some commentators might argue the opposite. By clarifying how actors on the Internet may lawfully provide a work to users only in countries where the work is in the public domain or for which the actors hold a license, the judgment advances legal certainty for actors who seek to operate lawfully in cyberspace, thus ensuring that more content becomes available online in general.

Clarity about the ability of actors to geographically limit their conduct online might be an argument against the balkanization of the Internet. If access to content can be effectively regulated by content providers, no government intervention should be necessary to wall off the Internet in individual countries. Even the territorialization of the Internet is not new; the Internet has been subject to gradually increasing territorialization from its origins, and the end of the “Wild West era” of the Internet was inevitable.

Any comprehensive analysis of Anne Frank Fonds should be subject to further debate, but two aspects can be highlighted for now: the establishment of the knowledge standard, and the assessment of the effectiveness of geoblocking measures. Both of these aspects will be crucial for the future of the Internet under the legal regime that the judgment has created.

According to the CJEU, the “obligation to adopt effective technological measures to restrict access” to copyrighted content online falls on “any person who knows or ought reasonably to have known” that a work is protected by copyright in some EU member states, even though the work is in the public domain in other member states (par. 42). In the Anne Frank Fonds case, this knowledge standard presents no issue. The defendants clearly knew that the work was still protected by copyright in the Netherlands, as was confirmed by their deployment of geoblocking measures to prevent access from the Netherlands. But in many other cases, the reasonableness of having knowledge about foreign copyright protection might be debated. Will the expectation of knowledge be the same for corporate content providers, individual influencers, and occasional social media users? Imposition of an unreasonably high standard would translate into uneconomic costs that would deter speech, or at least some speech, on the Internet.

Cost considerations might also affect the standard of legal effectiveness of geoblocking measures. While some costs of doing business on the Internet are reasonable, a requirement that would result in unreasonable costs would negatively affect speech on the Internet. Geoblocking tools are not all created equal; their effectiveness varies. If the law is to rely on geoblocking, minimal technical standards must be set to identify geoblocking tools that meet any legal minimum. In the Anne Frank Fonds judgment, the CJEU confirmed, very sensibly, that a possibility of circumvention does not automatically render geoblocking measures ineffective for legal purposes (par. 51). However, the CJEU left it to the national court to decide whether the deployed measure was effective (par. 48).

The CJEU defined “a geo-blocking measure” as “a process that is aimed at enabling or preventing access to the work published on the website depending on the geographical location of the user in the light of the Internet Protocol address (‘IP address’) which he or she uses to connect to the website” (par. 44). We can only assume, and also hope, that by prefacing the court’s definition with the phrase “[i]n the present case,” the CJEU intended the wording not to be the legal definition of geoblocking measures, because newer geoblocking tools no longer rely solely on IP addresses. If the geoblocking measure deployed by the defendants in Anne Frank Fonds relied solely on IP addresses, the question whether the measure was “state of the art” might be warranted (par. 49).

The post CJEU Judgment on Geoblocking & Standards for Knowledge of Foreign Copyright Laws and Geoblocking Measures (Guest Blog Post) appeared first on Technology & Marketing Law Blog.

The Court Ruling

The court addresses Doe’s concerns via the “expectation of privacy” factor for considering subpoenas, which is a little tone deaf because there are other major social considerations at play beyond just privacy. In any case, those expectations of privacy depend on the case’s substantive merits, which in turn depends on copyright fair use. The court isn’t very sympathetic to Doe’s fair use arguments. It summarizes: “With the first and third factors clearly favoring Petitioner, the second factor only somewhat favoring Doe, and the fourth factor favoring Doe, the Court cannot find at this stage that Doe’s archive constitutes a fair use of Petitioner’s works.”

Nature of Use. Doe’s website had no hint of commerciality, and its linguistic tools were transformative. However, the archive was not transformative. The court points out how Google Books only displayed snippets, while the archive displayed full texts, so this was more like Internet Archive’s Free Digital Library. “[W]hile the material in the archive is plainly necessary for Doe’s non-infringing uses of the material, it does not follow that Doe’s publication of the entirety of that material online, separate and apart from Doe’s transformative commentary, is also a transformative use—especially because Doe’s analytic tools have continued functioning after the archive was taken down.”

Nature of Work. “Because the work at issue here is published and contains a mix of factual and expressive content, this factor—if it favors any side here—slightly favors Doe.”

Amount Taken. “the archive’s copying is not proportionate to Doe’s goals….Doe’s critical goals could have been achieved with more tailored disclosure of the works….Doe does not explain why the public disclosure of the full copyrighted work was necessary to retain credibility—Doe could have disclosed only parts of the works they directly compared or critiqued, or disclosed the full works only privately to Doe’s critics rather than the Internet writ-large.”

Market Effect. The Jehovah’s Witnesses “license copies of the materials included in the archive for research use…That is not inconsistent with Petitioner publishing the works free of cost: Petitioner may make the works publicly and freely available to read, but not to copy….the archive could, at least for some, supplant Petitioner’s own websites and archives, by becoming available to Internet users writ-large through search results.” But, the Jehovah’s Witnesses didn’t provide evidence that it charges for its licenses, so the archive may not have an economic impact on it. That tips this factor towards Doe.

In total, the court views the fair use factors as a mixed bag. As a result, the court says that Jehovah’s Witnesses is entitled to the unmasking subpoena because it meets the other qualifications for subpoena issuance, and the fair use defense wasn’t strong enough to flip that.

Implications

I imagine this case will be appealed to the Second Circuit. There are several good appealable angles, including how courts should consider the free speech implications of 512(h) subpoenas and whether the district court should have been more charitable to Doe’s fair use arguments.

The court opinion doesn’t acknowledge the greater context of how religious institutions use copyright law to target and suppress online critics. These scuffles are as old as the commercial Internet. For example, the seminal 1995 RTC v. Netcom case–which established the notice-and-takedown model that turned into the DMCA 512(c)–was a Church of Scientology enforcement action against an online critic. Earlier this year, Prof. Cathay Smith covered another case in this genre (“A Religious Organization is Suing its Critics, and the Weapon of Choice is Copyright—RRT v. Cheryl Bawtinheimer“). Also see my paper with Prof. Silbey on copyright as a memory hole.

Religious institutions are entitled to create and enforce copyrights just like everyone else, but their enforcement practices often look and feel different than most other copyright owners. For example, the opinion noted that the Jehovah’s Witnesses claim to have a licensing program for researcher copying of its materials, but there isn’t evidence that those licenses generate revenue. Instead, the copyright licensing scheme most likely advances non-financial interests–such as the suppression of criticism–that aren’t really what copyright law was designed to do. Indeed, even in this era of extraordinary transparency, some religious institutions still effectively prevent “outsiders” from knowing about–and thus potentially critiquing–their inner workings. Archives of religious texts are a crucial counterbalance to that secrecy and any associated avoidance of accountability. It would have been better if the court had engaged with this broader context, rather than essentially treat this as a routine one-off interaction between a religious institution and an unhappy member.

A reminder that 512(h) is a fast lane to unmask online actors, and it was written without adequate privacy safeguards. In this case, the Jehovah’s Witnesses can potentially impose a range of extrajudicial consequences on Doe once unmasked, such as excommunication. This expanded toolkit of extrajudicial remedies is another way that religious institutions’ copyight enforcements are different than other copyright owners. Troubingly, 512(h) hands them a powerful and dangerous tool for misuse and abuse.

Also, I was confused about Cloudflare’s status as the target of the 512(h) subpoena. The court glosses over the services Cloudflare provides to Doe. Courts have repeatedly said that 512(h) doesn’t apply to IAPs because they don’t host anything. Is Cloudflare more like a host or an IAP in this circumstance? Unless the court explains how Cloudflare qualifies as the website’s host, it would have been helpful for the court to consider the implications of applying 512(h) to website vendors.

Case Citation: In re: DMCA Subpoena to Cloudflare, Inc., 2026 WL 2110881 (S.D.N.Y. July 21, 2026). The CourtListener page.

EXTRA: In re DMCA Subpoena To Reddit, Inc., 2026 WL 1847873 (N.D. Cal. June 26, 2026). In March 2025, a Reddit user with the username u/tiktoktruthseeker posted to the r/FavoritedRanksDrama subreddit a 27-second clip from one of Shafiei’s TikTok livestreams, accompanied by a paragraph of critical commentary. The clip depicts Shafiei speaking directly to the camera, using language such as “Your mom was a bitch” and “When you were in school you got fucked in the ass.” The post, titled “PBA: Weaponizing SA, Homophobia, and Moms for his Angry Rant,” received 42 upvotes.

Shafiei sent Reddit a takedown notice and got a 512(h) unmasking subpoena. Reddit dishonored the takedown notice, taking the position that the post was fair use, and resisted the 512(h) subpoena. Thank you, Reddit, for standing up for your users!

The court agrees with Reddit’s fair use determination:

• “Even though the Reddit user included an unaltered clip from Shafiei’s livestream, what matters is that the poster used it to express criticism of Shafiei’s rhetoric. As such, the Reddit user’s posting of the clip is a transformative fair use rather than infringement….where the post is best understood in the context of the video clip it directly criticizes, such use is justified.”
• “even if the post includes personal attacks, disparagement, no matter how rude, may still be transformative.” [See my Memory Hole paper for more on the overlaps between copyright and disparagement.]
• “the livestreamed video is primarily factual in that it is an informational presentation of Shafiei’s opinions.”
• “the use of a 27-second clip from someone who livestreams up to 16 hours per day is quantitatively insignificant.”
• “The Reddit user’s commentary within the post directly references statements made by Shafiei in the 27-second clip. Omitting this clip and instead referencing Shafiei’s livestream or providing a link to Shafiei’s account would be insufficient because it would not provide the full context for the user’s commentary.”
• “Shafiei’s arguments that the post’s criticism may suppress demand by making TikTok users aware of his behavior is not a cognizable copyright harm.”
• “It is also not clear that reproduction of a 27-second clip from a livestream has any value outside of the livestreamed context. The clip does not serve as a substitute for Shafiei’s daily presence on the platform for up to 16 hours at a time.”

EXTRA 2: Alireza Shafiei filed another lawsuit demanding the identity of a Reddit user, Vegetable_Lettuce450, over a 7-second clip from one of his livestreams. A different court also rejects the subpoena because of fair use:

• Nature of use. The clip is commentary/criticism.
• Nature of work. “Although the Court supposes that the livestream reflects some nominally creative choices, such as the framing of the video and the selection of emojis animating the screen, the video (which Reddit characterizes as a “stream- of-consciousness diatribe”) is hardly a work so creative to be at “the core of intended copyright protection.” Moreover, Mr. Shafiei posted his livestream publicly on TikTok, which “undermines” his right and ability to control subsequent distribution of the video.”
• Amount taken. 7 seconds from a guy who livestreams up to 16 hours a day.
• Market effect. “suppression of demand from criticism is not a cognizable copyright harm under factor four” and there’s no licensing market for short clips from an inveterate livestreamer.

In re DMCA Subpoena to Reddit Inc., 2026 WL 2187691 (N.D. Cal. July 29, 2026)

Some Other Blog Posts on 512(h)

• Court Authorizes Unmasking Subpoena in Copyright Case–In re DMCA Subpoena to GoDaddy
• Internet Access Providers Aren’t Bound by DMCA Unmasking Subpoenas–In re Cox
• Court Quashes 512(h) Subpoena on First Amendment Grounds–In re 512(h) Subpoena to Twitter
• Court Quashes 512(h) Subpoena Submitted to YouTube–Watch Tower v. Kevin McFree
• Twitter Can’t Quash a 512(h) Subpoena
• Court Orders Unmasking Subpoena of Alleged Infringers–Baugher v. GoDaddy
• 2H 2019 and Q1 2020 Quick Links, Part 1 (Copyright, E-Commerce, Advertising)
• 512(h) Doesn’t Preempt Doe Unmasking Lawsuits–Strike 3 v. Doe
• eBay Must Disclose User Identities In Response To 512(h) Subpoenas
• Q2 2015 Quick Links, Part 1 (IP, Marketing and More)
• An Unmasking Effort Gets Gutted Some More – Art of Living Foundation v. Does
• Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does (Guest Blog Post)
• Spiritual Group’s Attempt to Unmask Online Critics Goes South–Art of Living Foundation v. Does
• Did a Court Eliminate 512(h) Subpoenas?–Maximized Living v. Google
• Co-Blogger Identity Isn’t Disclosed via 512(h), but Takedown Letters Are Copyrightable

The post Court Greenlights Jehovah’s Witnesses’ Unmasking of Online Critic–In re DMCA Subpoena to Cloudflare appeared first on Technology & Marketing Law Blog.

Contributory Infringement

Inducement to Infringe. The court says it’s not inducement when “Plaintiff merely alleges that Defendant knowingly allowed listings of infringing TJ Karaoke devices to remain active on its website despite having the ability to remove the listings….Nor has Plaintiff alleged facts giving rise to an inference that the ‘principal object’ of Defendant’s online marketplace is the sale of infringing products. [cite to Grokster]”

Tailored to Infringement. The plaintiff did not allege that “Defendant’s service is incapable of substantial or commercially significant noninfringing uses….allegations that a service provider merely had ‘knowledge that a service will be used to infringe’ or ‘fail[ed] to take affirmative steps to prevent infringement’ are insufficient to state a claim for contributory infringement liability.” Given eBay’s scope, I don’t see how a plaintiff could allege that eBay is “incapable of substantial or commercially significant noninfringing uses.”

Vicarious Infringement

Citing Milo & Gabby, the court says the “mere fact that Defendant had the ability to remove listings of infringing devices is not enough to establish that Defendant had both the legal right and the practical ability to stop the third-party sellers’ infringing conduct.” The court doesn’t discuss the direct financial interest prong, which poses a heightened challenge to eBay due to its commission structure.

Did Cox Make a Difference?

The Supreme Court’s Cox v. Sony decision didn’t address vicarious copyright infringement, so that part of the ruling wasn’t affected by the Cox case.

This court did apply the revised Cox standards for contributory copyright infringement, and the application of those factors makes this an even easier case. Lee made knowledge-based allegations, but–as the Cox court seemingly intended–Lee could not spin those allegations to satisfy an intent-based standard. It makes quick work for a defendant like eBay who has taken many steps to reduce copyright infringement.

(It remains to be seen if courts will (1) bend the standards in Cox to distill evidence of intent from knowledge-based allegations, or (2) bend the standards of direct or vicarious infringement to gapfill the narrowed contributory infringement standard. Fortunately, this court did neither. However, it was also a pro se case, not a full-scale assault to degrade the Cox standards that rightsowners will launch eventually).

However, I don’t think Lee’s claims would have gotten far with the pre-Cox jurisprudence either. Courts have routinely rejected staydown demands from plaintiffs. Also, eBay’s honoring of the NOCIs means that it would have likely qualified for the 512(c) safe harbor too. Still, those defenses might not have worked until summary judgment, at significant defense costs, while the Cox precedent easily and decisively ends this case on a motion to dismiss.

Case Citation: Lee v. SBS Corp., 2:26-cv-03144-MCS-E (C.D. Cal. July 9, 2026)

UPDATE: Lee v. SBS Corp., 2026 WL 2261023 (C.D. Cal. Aug. 5, 2026). The court granted Google/YouTube’s motion to dismiss.

Plaintiff alleges no act of direct infringement attributable to Google aside from that “the YouTube platform [is] operated by” Google and YouTube. Moreover, Plaintiff does not allege that YouTube selected infringing works for upload or download or instigated any copying, storage, or distribution of the works….

Plaintiff does not allege that YouTube induced infringement or that YouTube provided a service tailored to infringement. Rather, Plaintiff merely alleges that Google and YouTube “selective[ly] remov[ed]” infringing video content on its platform. Plaintiff has not alleged that Google and YouTube actively encouraged infringement through specific acts, such as by advertising an infringing use of its services. Nor has Plaintiff alleged facts giving rise to an inference that the principal object of YouTube’s online platform is the distribution of copyrighted videos….

Plaintiff merely alleges that Google and YouTube “had both the ability and the opportunity to remove the infringing content, yet knowingly allowed certain infringing videos to remain on the platform while continuing to derive financial benefit from them,” not that YouTube’s service is incapable of substantial or commercially significant noninfringing uses…

The mere fact that infringing content existed on YouTube is insufficient to allege that YouTube attracted users specifically because of content that infringed Plaintiff’s copyrights.

The post eBay Defeats Contributory Copyright Claim–Lee v. SBS appeared first on Technology & Marketing Law Blog.

Coomer v. Lindell, 2026 WL 817370 (D. Colo. March 25, 2026)

Related post. This is more fallout from the efforts to deny the 2020 presidential election results. MyPillows huckster Lindell publicly trashed Dominion Voting and and its president, Coomer. A jury held Lindell and Frankspeech liable for defamation and more. The defendants unsuccessfully tried to overturn the jury verdict post-trial.

Frankspeech invoked Section 230 for its liability for Lindell’s speech. The court disagrees:

Mr. Lindell founded Frankspeech. He regularly acted as its corporate representative, including at trial. He hosted his own show on Frankspeech, broadcasted it through Frankspeech, and used the Frankspeech platform to make and publish statements about Dr. Coomer. There is no evidence that anyone other than Mr. Lindell exercised any meaningful degree of control over the Frankspeech entity. By all accounts, Frankspeech was Mr. Lindell’s corporate alter ego in this context….for § 230 purposes, Frankspeech’s defamatory statements through its agent would plainly qualify as participation in the development of those statements.

Frankspeech also claimed Section 230 for Clement’s remarks at a conference. The court responds: “Frankspeech—through Mr. Lindell and others—sponsored, promoted, and broadcasted the event….a reasonable jury could conclude that Frankspeech’s conduct (including its conduct through Mr. Lindell) created actual or apparent authority for Mr. Clements and other presenters at the Cyber Symposium to act as agents of Frankspeech.”

Murphy v. LinkedIn Corp., 2026 WL 881710 (N.D. Cal. March 30, 2026)

Fraudsters approached Murphy via LinkedIn direct messages. The conversation switched over to WhatsApp, where the fraudsters effectuated their fraud. Murphy’s lawsuit against LinkedIn fails due to Section 230:

Plaintiffs’ claims for negligence, gross negligence, and product liability are premised on a purported duty to “monitor” users, “restrict the accounts of fraudulent actors,” and to suppress “fraudulent activities” by users of LinkedIn’s platform. These claims “necessarily implicate” LinkedIn’s role as a publisher of third-party content because “discharging the alleged duty would require [LinkedIn] to monitor third-party content and prevent” communications between fraudsters and legitimate LinkedIn users. Nor can Plaintiffs sue LinkedIn for breaching a “duty to warn.” LinkedIn’s “role as a publisher of third-party content does not give it a duty to warn users of ‘a general possibility of harm’ resulting from” using LinkedIn’s services.

The plaintiffs unsuccessfully tried the defective design workaround:

Plaintiffs argue that their claims are not based on LinkedIn’s role as publisher, but rather its role “as a product manufacturer and developer of defective algorithms” that facilitated communications between fraudsters and Plaintiffs. But the Ninth Circuit has repeatedly upheld dismissal of negligence and product liability claims framed in the same way. [cites to Doe v. Grindr and Dyroff]

A Roommates.com workaround didn’t work either:

Plaintiffs’ claims are premised on LinkedIn’s neutral tools for connecting users, not on content that LinkedIn created or required users to provide as a condition of using its services. Indeed, LinkedIn expressly informs users that they “have choices about the information” on their profiles, and that users “don’t have to post or upload personal data” that may make them targets of fraud.

To put a finer point on it, if the plaintiffs are complaining about LinkedIn direct messages, then those messages may be covered by the ECPA just like email, and LinkedIn may have had limited legal rights to monitor the conversations at all.

Finally, the plaintiffs tried a TOS-based workaround, poured into consumer protection laws. The court acknowledges that some breach of contract claims may not be preempted by Section 230, but

These claims are premised on the same duties discussed above – duties to monitor, to design products in a different manner, and to warn – that fundamentally seek to hold LinkedIn liable for content created by the fraudsters. Styling these claims as different legal theories does not remove them from Section 230’s scope….

Plaintiffs seek to hold LinkedIn liable solely based on its general monitoring policy and aspirations to remove fraudulent users from its platform. Moreover, LinkedIn expressly disclaims liability by notifying users that they “may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful,” and that LinkedIn “generally does not review content provided by [its] Members or others.”

McNeal v. Calvin, 2026 WL 879228 (E.D. Mo. March 31, 2026)

This case relates to the TV show Love & Marriage: Huntsville, shown on OWN (Oprah’s channel). The plaintiff, a lawyer (naturally), is one of the women featured in the show. She is upset about online comments about the show and sued many defendants pro se. The court says “Section 230 of the Communication Decency Act bars Plaintiff’s claims against YouTube, Google, and Tik Tok.” In particular, “The content uploaded by users cannot be attributed to internet service providers based on the theory that users are “agents” of the websites they use.”

Shiva Ayyadurai v. U.S., 2026 WL 879409 (D.C.D.C. March 31, 2026). My prior blog post about a different litigation of his.

This is a jawboning case:

Ayyadurai’s 75-page Complaint alleges that various Massachusetts state officials—none of whom are named as Defendants in this case—federal officials at the Cybersecurity Infrastructure Security Agency (“CISA”), and other government officials unknown to him have coordinated with private companies to regulate and censor his speech by “deplatforming” or “shadowbanning” him—that is, suspending his social media accounts or limiting the reach of his posts. Ayyadurai alleges that the Defendants took these actions in retaliation for posts in which he “articulat[ed] a government employee’s role in destroying the digital ballot images used to tabulate votes” in a prior election.

With respect to the liability of the social media defendants who allegedly got jawboned, the court accepts the 230(c)(2)(A) defense:

Ayyadurai’s Complaint fails to state a claim against the Social Media Defendants based on their content-moderation decisions because he does not plausibly allege that any of those decisions were made in the absence of “good faith” or that they were made for a purpose other than removing content that they “consider[ ] to be … objectionable.”…

conclusory allegations of bad faith are insufficient to state a claim against a platform based on activity within the reach of Section 230(c)(2).

At the same time, the court struggled with applying to Section 230(c)(1) to the removal decisions. Incredibly, it says:

only a few of the decisions restating this broad dictum [from Zeran] have grappled with its implications when the challenged conduct is a platform’s decision to remove objectionable content—such as a plaintiff’s own posts—rather than a decision to leave other objectionable content in place. Extending immunity under Section 230(c)(1) to cover direct challenges to the removal of user content is an uneasy fit with the language of the provision, which says only that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A broad reading of Section 230(c)(1) that immunizes all content-removal decisions also risks “swallo[wing] the more specific immunity in (c)(2),” which applies only to content-moderation decisions that are made in “good faith.”

Not this shit again. I have repeatedly explained how Section 230(c)(2) can apply to first-party filtering decisions, which leaves room for Section 230(c)(1) to protect against liability for third-party content. There are DOZENS of cases applying Section 230(c)(1) to removal decisions, so for the court to think that it’s spotted something that all of those other courts have missed is laughable…and completely gratuitous…and ultimately inconsequential given that the court still tosses the case.

The court tries to justify its reluctance on Section 230(c)(1):

There is little reason to strain the reach of the immunity in Section 230(c)(1) when, as in this case, the immunity in Section 230(c)(2) leads to the same result.

NOOOO. There are several excellent reasons to apply both 230(c)(1) and 230(c)(2):

(1) 230(c)(1) doesn’t have a good faith prerequisite, which has mucked up 230(c)(2) jurisprudence and made 12(b)(6) dismissals much more difficult to obtain, jacking up the litigation costs for both sides and giving false hope to bogus claims. Indeed, because the court dismissed this case without prejudice, I’m sure an amended complaint will try again to manufacture bad faith sufficient to kick the case into very expensive discovery;

(2) removal and leave-up decisions are two sides of the same decision, i.e., every editorial decision about an item of third-party content is either a leave-up or removal decision, so they cannot be separated; and

(3) the statute and 25+ years of caselaw have established the principle that 230(c)(1) applies to removal decisions.

Sigh. In the end, this case ends up the same as all of the other content removal and account termination cases–dismissed.

Gaughan v. Barounis, 2025 N.Y. Misc. LEXIS 17243 (N.Y. Supreme Ct. December 18, 2025) 

The Complaint alleges that the impersonating profile and pictures of plaintiff were posted by defendants Barounis and Viera. Plaintiff’s contention that the XVideo defendants are liable for refusing or failing to remove offending material prepared by a third party, or that they may be held responsible for allegedly defamatory postings made by third parties does not state a viable basis for liability. Nowhere in the Complaint does plaintiff allege that the XVideo defendants posted or created the impersonating profile themselves, altered or edited its contents, or encouraged, required, or otherwise induced defendants Barounis and/or Viera, or any other user, to create the profile or upload unlawful content. To the contrary, plaintiff even alleges in her Complaint that Barounis and Viera allegedly making this impersonating profile goes against XVideo.com’s Terms and Agreements.

The Court also finds plaintiff’s argument that the XVideo defendants should be responsible for her alleged stolen identity, and that Section 230 does not apply in cases, unavailing.

It has also been held that “Sections 50 and 51 of the New York Civil Right Law sounds in privacy, not intellectual property, and thus does not fall within the intellectual property exceptions in Section 230.”

Equally, plaintiff’s contention that this immunity is lost because the XVideo defendants allowed the dissemination of plaintiff’s personal information and allowed discriminatory content (age, sex, sexual orientation, ethnicity, etc.) is unsuccessful.

Arana v. Molta, 2026 WL 1166348 (D. Mass. March 24, 2026)

Mr. Molta drafted the description of, and provided the photos for, the Dennis Property posted to WNAV’s website. WNAV did not review, revise, edit, or provide feedback on the Dennis Property listing that the Moltas posted to the WNAV website. WNAV is thus immune from liability for any of the statements or representations made by the Moltas in the Dennis Property listing.

Greer v. Moon, 2026 WL 1170015 (D. Utah. Feb. 11, 2026)

Mr. Greer’s only claims against Defendants are for contributory copyright infringement under federal law. Because those claims clearly “pertain[ ] to intellectual property,” they cannot be barred by section 230. Defendants’ argument concerning section 230 immunity fails.

Tufano v. Google LLC, 2026 U.S. Dist. LEXIS 100789 (N.D. Cal. May 6, 2026)

“Plaintiff premises his claims on Google allegedly “filter[ing] out all negative reviews” of Dr. Taban, including Plaintiff’s negative review, which Google allegedly removed.” The court dismisses per Section 230: “First, Google’s review service is an interactive computer service. Second, Google publishes the reviews on which Plaintiff bases his claims. Third, third parties, and not Google itself, provide the reviews published by Google.” The plaintiff said Google didn’t act in good faith, but Google relied on 230(c)(1) where good faith is irrelevant, and the plaintiff didn’t provide any evidence of bad faith.

Starship LLC v. Shein Distribution Co., 2026 WL 1455009 (C.D. Cal. March 20, 2026)

This is a fast fashion enforcement lawsuit that includes both copyright and trademark claims. The direct infringement claims largely fail because Shein operates as a marketplace for online vendors. The contributory infringement claims failed because the plaintiff wanted a staydown in response to takedown notices. The vicarious infringement claims also fail.

Shein defended against the unfair competition claim based on Section 230. The court says:

Plaintiff characterizes Shein as an information content provider because it “regularly markets and sells goods” and “is involved in almost all aspects of the marketplace’s distribution chain.” These conclusory assertions do not plausibly allege that Defendants are content providers. Plaintiff provides no factual basis to infer that Defendants materially contributed to the alleged infringement.

King v. Jilin Province Detiannuo Safety Tech. Co. Ltd., 2026 Fla. Cir. LEXIS 295 (Fla. Cir. Ct. Feb. 17, 2026)

Plaintiff does not allege that eBay participated in the creation or development of Seller’s listing or allege that eBay played some role in handling or transmitting the airbag components. Plaintiff only alleges that eBay should have removed Seller’s listing and/or issued some censure to Seller for its alleged noncompliant listing….

The only way eBay allegedly could have prevented the harm was by reviewing the third-party listing, determining whether it complied with internal policies, and removing it. That conduct, i.e., deciding whether to publish or remove third-party content, is a paradigmatic editorial function protected by the CDA.

In re Apple Inc. App Store Simulated Casino-Style Games Litigation, 2026 WL 1552391 (N.D. Cal. June 1, 2026)

The Court finds Defendants’ argument that Section 230 provides immunity from suit unavailing. Defendants point to the clause in Section 230 that states that “no cause of action may be brought” that is contrary to the statute. 47 U.S.C. § 230(e)(3). But the Tenth Circuit has held that Section 230 “provides immunity only from liability, not suit.” And the Ninth Circuit case Defendants themselves cite clearly states that Section 230 is designed “to protect websites against the evil of liability for failure to remove offensive content”; that case does not mention protection from suit. Thus, the Court concludes that Section 230 does not protect Defendants from suit.

Accardi v. CSC Holdings, LLC, 2024 N.Y. Misc. LEXIS 83186 (N.Y. Supreme Ct. November 26, 2024)

The plaintiffs claim that defendants failing to follow their terms of service makes them liable to the plaintiffs, effectively negating the immunity provided by the Communications Decency Act. After a review of the papers submitted by the defendants and the plaintiffs, the Court finds that the immunity provided by Section 230 does apply to the defendants in this action and the plaintiffs have not proffered any compelling argument or evidence to negate this immunity. As such, the defendants motion to dismiss the third cause of action pertaining to the failure to remove posts on social media is granted.

Life Mastery Network LLC v. Haygarth, 2026 WL 1622887 (D. Haw. May 22, 2026)

Paula indisputably enjoys immunity under the CDA for reposting content. Many courts have included private individuals within the scope of a “user.” Thus, (1) Paula is a “user of an interactive computer service”; (2) the subreddit link is “based on information provided by another information content provider”; and (3) Plaintiffs’ claim would treat Paula “as the publisher or speaker of that information.” As such, and as Plaintiffs have conceded at the Hearing, Paula is immune from lawsuit for what she reposted from Reddit.

But because the CDA does not immunize someone who posts original content, it makes sense that adding comments to something that is re-posted would not trigger CDA immunity. While these cited cases are not directly on point, the Court concludes that Paula’s comments regarding what she reposted are not subject to CDA immunity.

Glazer v. Meta Platforms, Inc., 1:25-cv-01849-GLR (D. Md. June 12, 2026)

The Court agrees with Meta that Section 230 bars Plaintiffs’ claims….All three elements are satisfied here: Meta is an interactive services provider; Plaintiffs’ claims treat Meta as the publisher or speaker of information under Section 230 because they “seek ‘to hold [Meta] liable for . . . deciding whether to publish, withdraw, postpone or alter content’ provided by third parties”; and the content at issue here is that of third parties, and Plaintiffs “seek[] to hold Meta liable, not for providing that content, but for allowing third parties to do so.”

Related ruling.

Sidoli v. YouTube LLC. 2025 U.S. Dist. LEXIS 210953 (N.D. Cal. Sept. 2, 2025)

Plaintiff also seeks to treat YouTube as a publisher because she alleges that YouTube wrongfully demonetized, restricted, and removed her videos. Such conduct falls within a publisher’s traditional functions….

YouTube cited authority that which stand for the proposition that Section 230 immunizes internet service providers from suit for termination of a plaintiff’s entire channel as well as the content that the plaintiff posts on that channel. Such authority is persuasive. Thus, any claim Plaintiff brings which seeks to challenge YouTube’s decision to remove Plaintiff’s YouTube channel is also barred by Section 230.

Also, “Plaintiff’s constitutional claims cannot proceed as YouTube is a private forum, not a state actor.”

See also Sidoli v. YouTube LLC, 2026 WL 1480407 (S.D.N.Y. May 27, 2026), upholding YouTube’s TOS and forum selection clause: “Defendants provide evidence, which Plaintiff does not dispute, showing that she agreed to abide by the terms of service by clicking the “Create Channel” button when she started her YouTube page on June 21, 2021.”

Kennedy v. Vickery, 2025 Me. Super. LEXIS 108 (Me. Superior Ct. Sept. 10, 2025)

RFK Jr. lost a defamation lawsuit. As for Section 230:

Defendant posted on X, without comment, a link to an article, authored by thegrio.com, titled “Anti-vaxxer Robert F. Kennedy Jr. is harming black people—and his family legacy—with his vaccine misinformation campaign.”…

Under the Communications Decency Act, internet service users are not liable for repeating, without embellishment, third party content….

Exhibit A to the Amended Complaint supports Defendant’s assertion that he posted the third-party content without embellishment. Plaintiff denies Defendant posted the link without embellishment, but cites no admissible record evidence to support the denial. Thus, under the Communications Decency Act, Defendant is not liable to Plaintiff for this post.

Awoye v. Jones, 2026 WL 1847088 (D.N.J. June 26, 2026)

In Instagram posts, Jones claims that Awoye scammed her. Awoye sued her and brought Meta along for the ride, claiming it had violated his publicity rights. There isn’t any publicity rights violation here:

The core of Plaintiff’s allegations is that Jones spread allegedly false information about Plaintiff on Instagram. Jones was not selling a product or otherwise soliciting money from her followers. As such, neither was Instagram. Jones’ posts were the “dissemination of news or information” and not made for a commercial purpose.”

Norton v. Meta Platform, Inc., 2026 WL 1963120 (N.D. Cal. July 7, 2026)

In posts on Facebook, several third parties accused Norton of criminal activity and shared intimate images of him….

“Meta is an interactive computer service provider.” Second, Norton alleges that third parties, not Meta, created the Facebook posts at issue; the third parties, not Meta, are the “information content provider[s].” Third, each of Norton’s claims seek to treat Meta as a “publisher” of third-party content. “A claim that obliges the defendant to monitor thirdparty content to avoid liability … treats the defendant as a publisher.”

Norton argued “but the algorithms.” Citing Ligon, the court says the algorithms matter only if the algorithm creates content. Citing Roommates.com, the court adds: “Norton doesn’t allege that Meta required its third-party users to create or post any of the content at issue.”

Moore v. LogSat Software LLC, 2022 WL 23074273 (S.D. Ind. Sept. 29, 2022)

John Moore has never been accused of, arrested for, or convicted of any sex-related offense; yet, his name, picture, address, and other identifying information appear on LogSat Software LLC’s app, called “Sex Offenders Search”….

Mr. Moore was convicted in Indiana of voluntary manslaughter. Thus, he was required to register on a violent crime registry in Indiana. The violent offender and sex offender registries are the same in Indiana—in other words there are not two separate lists. Mr. Moore testified that he believed that there was no national violent offender registry, just a national sex offender registry and that he is on that because the Indiana Registry is reported to the National registry….

the alleged defamatory statement at issue is that Mr. Moore’s name, picture, address, and other identifying information appear on app called “Sex Offenders Search,” because he is not a sex offender and has never been accused of, arrested for, or convicted of any sex-related crimes. Mr. Moore does not allege that he was wrongfully included in the data set that LogSat purchased from FWD, or, for that matter, that he was wrongfully included on Indiana or the National registries.

The post Large Roundup of Section 230 Rulings appeared first on Technology & Marketing Law Blog.

The plaintiff claims a copyright in a book, Drug Lords of Oakland. The defendants operate a YouTube channel, Evil Streets TV. The plaintiff says that the defendants posted 15 videos, each of which narrated a chapter from his book, plus some videos included copyrighted photos from the book. The court implies the dispute roughly followed a DMCA notice-and-takedown protocol: I believe the plaintiff submitted a 512(c)(3) notice, the uploaders counternoticed per 512(g), the plaintiff unmasked the uploaders through a 512(h) unmasking subpoena, and the plaintiff named the uploaders in the lawsuit.

The court allows the plaintiff’s direct copyright infringement claim against the YouTubers to proceed. In contrast, YouTube wins the motion to dismiss:

Direct Infrngement. “Mr. Barnes fails to allege any facts showing YouTube’s control of or active involvement in the alleged infringement on the Evil Streets TV YouTube channel.”

Contributory Infringement. Per Cox v. Sony, “Mr. Barnes does not allege that YouTube intended that its service be used for infringement, that it induced infringement, or that it tailored its service to infringement. In addition, Mr. Barnes does not allege that YouTube has no use beyond its ability to host infringing content, nor could he plausibly make such allegations.”

Vicarious Infringement. The plaintiff’s allegations about right and ability to control were too conclusory. With respect to YouTube’s direct financial interests in the alleged infringement:

there are no allegations that YouTube profited because of the Sanchez defendants’ alleged infringement. At most, Mr. Barnes alleges that YouTube generally profits by hosting and allowing people to view third-party content, including the Sanchez defendants’ videos, and generally by operating the Partner Program according to its terms. The FAC is devoid of any allegations that any individuals sought out YouTube’s services “specifically because of the availability of the infringing material.”

This was a pro se challenge to YouTube’s core business, so it was always doomed to fail. Note that YouTube won without relying on the 512(c) safe harbor.

Case Citation: Barnes v. Sanchez, 2026 WL 1912085 (N.D. Cal. July 2, 2026). The CourtListener page.

The post YouTube Exits Copyright Lawsuit Over YouTubers’ Videos–Barnes v. Sanchez appeared first on Technology & Marketing Law Blog.

* * *

The case involves a photo called the “Parker Train Photo.” It was taken in 1962, but it was first published in a book in 2000. The plaintiff claims it licenses the photo for fine art reproductions for up to $5k each.

Messiah ran a blog initially entitled “Ask Fashion Kitty.” In 2009, she wrote a post entitled “Style Suggestions for Army Wives” about what a wife should wear when greeting her husband who is returning from an 8 month military tour in Afghanistan. Messiah found the Parker Train Photo in a Google image search and used it to illustrate her post:

In 2011, Messiah transferred the blog (including the post) to a new website, LaurenMessiah.com. Here’s how the post looked post-transfer. The opinion doesn’t mention how much traffic that post got, but given its age, I imagine traffic to the post within the statute of limitations was de minimis.

The plaintiff discovered Messiah’s post/photo in 2025 and sent a C&D. The court describes what happened next:

Defendants’ assistant dismissed the cease-and-desist as spam, deleted it, and did not forward it to Messiah. Defendants’ authenticated Slack communications confirm that Messiah described the copyright claim as “some stupid like copyright infringement thing for an old blog post.”

Messiah had the blog post deleted, but the image remained online at its (presumably highly obscure) direct URL (this eventually got deleted too). In 2025, the plaintiff sued for copyright infringement and 1202 violations.

Remarkably, the opinion doesn’t mention the statute of limitations at all, even though the original post had been published no less than 14 years earlier (I’m crediting the 2011 blog transfer as a possible republication). This silence reflects that the statute of limitations doesn’t functionally exist in online copyright law any more. Each new view/download nominally constitutes a new infringement, in which case the SOL resets to the most recent visit to the post.

Nevertheless, on summary judgment, the court dismisses the copyright infringement claim on fair use grounds:

Nature of Use. The blog post is transformative because “the Parker Train Photo is part of a broader work as published in the blog and accompanies fashion guidance, rather than being part of an anthology of the Photographer’s work.” Later, the court acknowledges that “the question-and-answer commentary does not appear to substantively reference the Photo at all,” but the text’s lack of substantive engagement with the photo doesn’t seem to affect the court’s transformativeness determination. This is a defense-favorable approach. I think other courts would reject transformativeness when the photo is used purely for its illustrative effect without any commentary.

Although Messiah’s website had a commercial purpose, “There is no evidence in the record of any revenue or commercial benefit earned from the blog or, more specifically, the Parker Train Photo blog post.”

Nature of Work. “the Parker Train Photo is a fashion photograph. Generally, photos are viewed as creative expressions.”

Amount Taken. “the question-and-answer commentary renders the Parker Train Photo insubstantial in context.” This is a highly defense-favorable conclusion because 100% of the photo was used.

Market Effect. “Plaintiff’s market, by its own admission, is fine art, whereas Defendants’ blog post served a different market function.” This is also a highly defense-favorable conclusion. The plaintiff did have a licensing program for the photo.

I interpreted the opinion’s defense-favorable twists to the court’s motivation to dismiss this case. Either the court was unmoved by the low-stakes nature of the alleged infringement (photographers should stop suing bloggers for copyright infringement!), or fair use was a backdoor way for the court to accommodate the lack of a statute of limitations.

1202.

there is a dearth of evidence on the record that Messiah knowingly failed to credit the Photographer when she posted the Parker Train Photo on her blog, or that she did so with the intent to induce, enable, facilitate, or conceal infringement. Messiah merely found the Photo on Google Images by searching “army fashion,” saving the file on her computer without altering the Photo or the filename, and then publishing the Photo on her blog. She testified that at that time, she looked for a watermark, could not find one, and had no knowledge of the Photographer. She also testified that the filename, “Melvin-Sokolsky5.jpg,” was provided by the source website and she did not know it referenced the Photographer.

The plaintiff pointed out that Messiah had occasionally credited other photographers in other posts. The court responds: “Plaintiff does not point to any case law to suggest that Defendants providing credit to some photos while missing credit for others indicates a pattern of deliberate conduct.”

* * *

Last month, I blogged about another case where a blogger illustrated their post with a third-party photo, and that did not qualify for fair use. I’m not sure how to reconcile the two cases, though the time delays in this case make it seem less sympathetic.

In my prior blog post, I made the following observations that mostly apply here as well:

• “Verbatim republishing of a third-party photo is inherently risky, even for bloggers.”
• “I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???”
• “why isn’t this case in the CCB, which seems like it was tailor-made for low-value cases like this?”
• “the photographer’s actual damages should be near-zero… I don’t see how the photographer is going to get any real payoff here”
• “All of this makes it a bummer for everyone–plaintiff, defendant, and society–that the parties couldn’t settle this case pre-filing.”
• “other than ignorance of copyright law, why would a blogger cut-and-paste a copyright photo from the Internet when a non-infringing substitute is just a few extra clicks away? A lawsuit like this heightens the demand for Generative AI replacements.” This advice doesn’t work here because the copying is so old that we were still at war with Afghanistan and Generative AI wasn’t widespread.

Case Citation: Sokolskyfilm, Inc. v. Lauren Messiah Inc., 2026 WL 1772787 (C.D. Cal. June 16, 2026)

The post Blogger Defeats Photographer’s Copyright Claim–Sokolskyfilm v. Messiah appeared first on Technology & Marketing Law Blog.

The court grants summary judgment to the photographer on infringement. The fair use defense fails.

Purpose of Use–Commercial. The blog post describes the problems with canine obesity, which is sorta educational. However…

The article recommends buying natural dog food, and, on another tab on the website, Defendant sells natural dog food. The canine focused article is also related to the main business purpose of the website, selling labradors. Indeed, the title of the article is “A Breeder’s Note On Canine Obesity,” calling attention to the fact that the author is herself a dog breeder. Other tabs on the website also link to products for purchase related to homeopathic dog health treatments….

Moreover, the photo itself is, at best, only tangentially related to the article’s educational purposes. The article alone provides any realized educational benefit, while the photograph is merely an attention-getting thumbnail. The article does not describe or interact with the photograph at all, nor is the photograph asserting anything of educational value

The blog post is educational content from a market vendor who has specialized expertise. Is it educational or commercial? ¿Por qué no los dos?

I don’t love how the court links commercial activity elsewhere on the website to the blog post. Yes, they are all part of the same enterprise, but I thought we had moved past this kind of link-counting 15+ years ago.

Purpose of Use–Transformative. “Defendant’s use of this photograph, as an eye-catching graphic atop an article about dog food options on a blog connected to their website which also sells dog food, is not transformative from the original use and purpose of the graphic. Defendant did not alter the work, instead reusing the photograph in its entirety.”

Nature of the Work. “The photograph at issue is a creative work, not an informational photograph. The photograph is not a factual or scientific depiction of an obese dog, rather, the photograph is a humorous depiction of two animals looking at a scale.” [Putting aside the dog body-shaming, the blog post now uses a photo of a chonky dog in place of the photo at issue in this case.]

Amount Taken. “Defendant advances no argument for why including the entire photograph was necessary….This is not a situation where the entire photograph was used “contextually,” as “explanatory” or “background” material to “aid in understanding and interpreting” a permissible purpose.”

Market Effect. The court counts this factor towards the photographer:

the extent of market harm from Defendant’s particular use of the photograph is minimal. Defendant’s particular actions did not cause Plaintiff’s market great harm, as Defendant did not offer the photograph for resale and the blog post was seemingly insulated from other platforms and located only on the breeder’s website. Additionally, Defendant’s audience was relatively small. At the time Defendant responded to Plaintiff’s interrogatories, and at the time the photograph was removed from the website, the article had forty-three (43) views….

[However,] should a large part of Plaintiff’s consumer base begin copying his work without paying for it, Plaintiff’s incentive to continue creating such works would diminish greatly

The court rejects the fair use defense and awards summary judgment on infringement to the plaintiff. The court will tackle the remedies issue in a later round.

Implications

Unsurprising outcome.

This isn’t a particularly surprising result. Verbatim republishing of a third-party photo is inherently risky, even for bloggers (see, e.g., Golden v. Grecco). It’s even riskier for commercial entities like the breeders in this case.

How is this case financially sensible for anyone?

I was struck by the fact that the blog post had 43 views. With such low stakes, how did this case make it to federal court and reach summary judgment???

And why isn’t this case in the CCB, which seems like it was tailor-made for low-value cases like this? Regarding the latter question, the plaintiff is represented by the Sanders Law Group, which brings a high volume of copyright cases. Maybe the law firm is managing the total number of cases they bring at the CCB…? Or perhaps they hope to get attorneys’ fees, which normally aren’t awardable in the CCB.

In any case, with 43 views at issue, the photographer’s actual damages should be near-zero. Statutory damages are possible, and the court did accept the plaintiff’s argument that some deterrence of unpermitted copying was necessary even if the photographer didn’t have a standard licensing program for the photo. But I can’t see more than a few thousand dollars of statutory damages at most–well below the litigation costs.

As a result, I don’t see how the photographer is going to get any real payoff here. Even the plaintiff’s lawyers aren’t guaranteed to get a fee shift. Without the fee shift, this case will be a big financial loser for them and the photographer.

All of this makes it a bummer for everyone–plaintiff, defendant, and society–that the parties couldn’t settle this case pre-filing. But it takes two to tango with settlements. I don’t know what conversations took place here, but I’ve seen far too many photographers make extortionate settlement demands that tip the defendants’ balance towards fighting rather than paying off. If I were the judge and I saw 43 views at issue, I would have pressed the litigants hard to stop wasting their time and money in court.

Why Generative AI should moot lawsuits like this

The photo’s concept might be a good way of depicting dogs who need to lose some weight, but that’s not protected by copyright. And implementing that vision by manufacturing this photo in physical space is resource-intensive. In addition to the other props, the photographer needs a dog and a cat, and they need to cooperate simultaneously.

In contrast, creating an image like this via Generative AI is trivially easy. I went to ChatGPT and gave it the following instructions, which are just a paraphrase of how the court opinion described in the photo:

(Note the possibility that Vedros’ photo was in ChatGPT’s training data).

For now, I would say that Vedros’ image is slightly more effective at communicating the desired message than my quick ChatGPT output. Also, the ChatGPT image is wonky. For example, it lists the dog’s weight with two decimal points and the numbers are upside-down. However, if I cared, I could have easily improved the image through a few additional prompts. And as a substitute for the original photo, the ChatGPT image works perfectly fine for a blog post illustration.

So, other than ignorance of copyright law, why would a blogger cut-and-paste a copyright photo from the Internet when a non-infringing substitute is just a few extra clicks away? A lawsuit like this heightens the demand for Generative AI replacements. I understand that photographers feel compelled to protect their interests, but I don’t think this particular lawsuit is a net win for the photographer community.

The defense did raise the AI substitutibility, but only as a reason to permit verbatim copying, which the court doesn’t appreciate:

Defendant asks the Court to rule, without any legal support, that copyright does not protect works which could have been generated with AI. Such a holding would destroy the foundations of copyright law. The Court declines to endorse or entertain this proposition.

[In a footnote, the court adds:] Defendant could have also taken its own photograph of a dog on a scale with the very dogs it breeds. Perhaps Defendant could also sculpt Michaelangelo’s David, or re-paint the Mona Lisa, depending on Defendant’s talent. Under Defendant’s logic, the only works entitled to protection would be those which no machine or human could recreate. This argument cannot stand.

Case Citation: Vedros v. The Sterling Group of the Twin Tiers, Inc., 2026 WL 1348120 (M.D. Pa. May 14, 2026).

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