When does a demand letter qualify as a specious ‘take-down’ demand under Section 512(f)?

Section 512 includes a recital of the various safe harbors from liability and is also collectively referred to as OCILLA (Online Copyright Infringement Liability Limitation Act). Section 512(f) is intended to be a deterrent to those making false claims of infringement; this subsection of OCCILLA makes the person who is asserting the false claim of infringement liable for damages suffered by those who were harmed by the false take-down plus attorney fees. The recent two cases demonstrate that this is a specialty tool to be specifically and narrowly applied against those who assert specious take-downs to ISPs and (f) is not just a blunt retaliation instrument.

1. Rock River Communications, Inc. v. Universal Music Group, Inc., 2011 WL 1598916 (C.D.Cal. April 27, 2011)

We’ve had the DMCA for a little over a decade now, and the case law reflects that we are beginning to chart the navigational paths through its topography. In this case, a remixer, the plaintiff, took a license from someone who purported to be the authorized licensee of the specific Bob Marley music at issue.

The defendants claim they are the correct licensor of that particular Bob Marley music; and, defendants succeeded in getting the allegedly infringing remixes removed from the market.

This case is one brought by one of those driven out of the market as retaliation for the newly remixed pieces being removed by use of Section 512. In short, the plaintiff is asserting that Section 512(f) is being incorrectly applied. The court agreed holding that (f) did not apply because the recipient of defendant’s take-down was not an ISP, but was a retailer. Section 512(f) did not apply both because iTunes wasn’t performing the functions contemplated by 512(c) and because iTunes has a financial interest, as such, the C&D letter isn’t the functional equivalent of a 512(c)(3) take-down notice.

2. Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 3:10-cv-05696-CRB (N.D. Cal. April 22, 2011)

In this case of the dueling take-down letters, two virtual animal vendors on Second Life sent numerous take-down demands regarding the alleged infringement of their respective bunnies and horses. In an unorthodox procedural play, the horse vendor asked the court to enjoin Second Life from acting on the bunny vendor’s take-downs. The court threw out the predictable Section 512(f) retaliatory claim brought by the horse vendor, in this the most recent episode of this ongoing saga.

The court held that because Second Life forbore from acting on the bunny vendor’s take-down there was no standing for a Section 512(f) action. While the horse vendor may be pragmatically correct that the sending of the specious take-down should be the only condition precedent to (f) eligibility, the court read the statute literally and ruled that there is a further second condition precedent to getting standing to file the (f) action is that the recipient of the take-down actually have taken it down.

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