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.