9th Cir.: Subjective Belief of Infringement Is Enough for Takedown Notice
In an opinion released yesterday in Rossi v. MPAA, the Ninth Circuit ruled that DMCA takedown notices may be sent when a copyright holder holds a subjective good-faith belief that the target of the notice is infringing. The applicable statute requires that the party sending the notice have a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
The facts here are pretty bad for Rossi. He’s in the business of selling memberships to his website, internetmovies.com. His site implies very strongly (to the point of saying outright) that when you join, you get to download full-length movies, as opposed to the trailers you can view for free. This turns out to be false; you can’t really get at any big-name full-length movies, even after buying a membership, and Rossi doesn’t host the trailers, he just links to them. So Rossi isn’t an infringer. His point is that if the MPAA had bothered to buy a membership to his site before sending the takedown notice, they would have seen that none of the promised copyright infringement is taking place.
So the main bad fact for Rossi is that, although he isn’t infringing, his site compels the conclusion that he is. In fact, I think Rossi’s site is unambiguous enough about its purpose to allow the MPAA to have formed an objective belief that Rossi was an infringer. When somebody has a big sign that says “Now Downloadable Online” above a bunch of movie posters, so little inferential work is required to come to the conclusion that he’s offering to let you download the advertised movies that it’s really not a subjective question. But that would probably be a factual issue for trial.
Regardless, statute sets up a subjective good faith standard. This was not a particularly controversial proposition; I ran across it fairly frequently over the summer while helping maintain chillingeffects.org, inputting cease-and-desist notices that (by my reckoning) fell into the chasm between actual infringement and conduct giving rise to a good-faith belief that infringement is taking place. This was part of the bargain that got us section 512, and I think, on balance, it’s not that bad.
Another bad fact is that though Rossi’s complaint alleges massive or (in the alternative) incalculable damages, he admits (boastfully) on his website that the takedown notice took internetmoves.com offline for a very short time: “… we are not crying about it. We were down for a full one second. We get knocked down but we just pop right back up.” I can only imagine the glee in the MPAA attorneys’ offices upon reading that. First, it blows away Rossi’s claims for actual damages. “You were down for one second?,” the court is likely to say, “Sounds de minimis to me.” And second, it blows away his claim for intentional infliction of emotional distress (not that a single takedown notice will ever give rise to a successful IIED claim in the first place). Curiously, it’s difficult to recover damages for “severe mental anguish, distress, depression, and humiliation” while simultaneously admitting that the plaintiff is “not crying about it.”
That does it for the merits of the plaintiff’s claim. But there’s one more (entirely immaterial) bad fact. Rossi’s site is peppered with little TM and SM marks on everything. Railing against the abuse of IP rights while claiming spurious trademark rights in such non-trademarkable phrases as “Now Available Online” and “Internet Movie Library” doesn’t win points with me.
Thanks to Derek for the pointer; all of the relevant documents from the litigation can be found on Rossi’s site.
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Thank you for taking time to post the story but your facts are not right.
You can join and get movies online this is a true statement and was not even in the same area of the movie posters that the Hollywood studios send me each week to post on my website. They love the free PR enjoyed it for 2 years 1999-2001. Only when I posted news about movies being downloaded online they try to stop me for telling the world the news I was the 1st to get the news out on that. Note they said that I had Lord of The Rings: Return of The King, The in 2001 that did not come out till Dec. 2003.
Yes you can download full-length movies online and I link too many of them they are not Hollywood movies and Hollywood does not own the word full-length movies and I did not promise anyone movies on my site you are reading between the lines like the courts and the MPAA.
Now Downloadable Online and Internet Movie Library is my TM I coined the phase and it is mine and does not just mean movies it means trailers too and I was the 1st to use it in commerce and the law lets me put a TM by it.
The SM is by InternetMovies is there because the USPTO.gov told me to put it there because I own the InternetMovies.
I did not admit anything about my site being down for one second if you read the case you would see I was down for 3 days in different parts of the world and I lost memberships and it has hurt my website a great deal I would be so far ahead of the game if the MPAA was not trying to put me out of business they just do not like anyone telling the truth about them and they do not own me our my network like the rest that are censoring me that is why you do not see my case in the main news. For the post on my website I was down for full one second was flipping the MPAA off with the middle finger and I do the same to this day if I was worried about the statement I would of took it down it was a message to the MPAA and looks like they got it good and well they can not push the little guys around and that is why I am winning the battle. I am only one man that is back by 1000s to fight for our rights and not sit around and let their rights be taken way remember that we are backed up by the Internet Commerce Coalition (ICC), and NetCoalition.com with amicus briefs. ICC members include AT&T, BellSouth, eBay, MCI, Verizon and others. NetCoalition members include Yahoo!, Lycos, Inktomi and others.
Maybe someday you will post some words on your website and the MPAA or anyone will not like it and read in to it and make it not say something other then what it means. I have a right to say what ever I please any time and any where I like. That is why I swore to protect the constitution USA form friends and foes and the MPAA and RIAA act like friends but are foes. I do not wish to live in a MPAA world that the lobbyist paid for unconstitutional laws to be passed and to submit to them less my constitutional rights. The very rights that my fellow soldiers our fighting and dieing today over to protect as the MPAA are widdling way the constitution and trying to wiggle their way out of this like a snake. I will fight them to the end I am not driven by greed. I am driven to do the right thing for my members that support this fight and fight for what little rights we have left.
Michael Jay Rossi
President
InternetMovies.com Inc.
P.S.
I am driven in an old truck not a Bentley.
Comment by Michael Jay Rossi — December 5, 2004 @ 5:13 am
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