Saturday, March 27, 2010

Cabell v. Zimmerman: The case of the phantom Section 512(f) claim

I hadn't intended to blog about this decision because it's so bizarre. But it's gotten some mainstream attention, and I wanted to point out what makes it so bizarre, and to correct the record.

Plaintiff Robert Cabell allegedly owns the copyright in a video called "Pretty Faces." Defendant is the former president of Actors Equity Association, the labor union for stage actors. AEA apparently enforces copyrights on behalf of its members, and in that capacity sent a DMCA takedown notice to YouTube regarding Cabell's "Pretty Faces" video. But it turns out AEA made a mistake; it admitted this and apologized in an email to Cabell. Cabell, upset about the improper takedown, sued, first in state court (unsuccessfully) and then in federal court.

On March 12, SDNY Judge Colleen McMahon granted Defendant's motion to dismiss. The decision features two holdings: 1) it is not copyright infringement to interfere with a third party's exploitation of the plaintiff's work; and 2) a claim under DMCA Section 512(f) over an improper takedown notice requires "actual knowledge" of the notice's lack of merit; mere negligence is insufficient to sustain a cause of action. Both of those holdings are well supported by the statute and case law.

But here's the bizarre part: I'm 99% sure that Cabell's complaint did not even include a Section 512(f) claim. I say only "99% sure" because I have not seen the complaint itself; for some reason it's not on PACER. But I went and read the motion to dismiss, opposition, and reply, all of which include extensive discussion of Cabell's apparently six causes of action. Those include copyright infringement, and a variety of New York state-law torts, including libel, "lost business opportunity," "unlawful seizure of property," and intentional interference with contract. But nowhere in any of the three briefs is there any mention of 17 U.S.C. § 512(f), and in fact Judge McMahon's listing of the causes of action on page 3 of her order does not mention that section.

What Judge McMahon appears to have done in her order is say, in essence: "The gravamen of Cabell's complaint is that AEA sent an improper takedown notice. The statute that addresses such a cause of action is Section 512(f) of the DMCA. But, even assuming that Cabell had brought a claim under Section 512(f), he would still lose because he alleged only negligence on AEA's part, not intentional misrepresentation."

Lastly, a brief note about improper takedown notices. Given the fallibility of human beings, and the vast amounts of infringement on the web, they are bound to occur. Nobody is perfect. (Though AEA's claim of one known mistake among "100,000's" of takedowns, if true, ain't shabby.) But there are quick, constructive ways to deal with the problem, and slow, ineffective, and expensive ways. Cabell chose the latter. As the email from AEA cited at page 8 of the order demonstrates, the organization quickly admitted its mistake and apologized. (Though it's unclear whether it actually retracted its takedown notice, which it could have and should have done.) In a rational, reasonable world, that would have been the end of the matter. Instead, Cabell brought not one, but two separate lawsuits, under deeply flawed legal theories. Wouldn't it have made sense just to accept AEA's apology and move on?


  1. When the entertainment industry catches someone posting an infringing video, do they let that party "apologize and move on"? Just curious.

  2. There is no equivalence, moral or otherwise, between making a rare mistake in enforcing against the millions of infringements on the web, and infringing others' copyrights. And actually, in virtually every case of infringement via YouTube, copyright owners do simply send a DMCA notice and move on; they almost never sue the infringer over his or her posting. Indeed, that is exactly what the DMCA intended: a quick, primarily extra-judicial means of addressing the rampant infringement on the Web.

  3. Ben - You can deny that mistakes in enforcement that cause improper takedowns, and and mistakes in creating or distributing works that cause infringement, but it's silly to try to deny there are similarities. As anyone who's studied copyright at all knows, "innocent infringement" still leaves the infringer on the hook for damages, and that includes not only actual damages where they can be shown, but the option of (reduced) statutory damages. And as you know very well, "innocent infringement" is a quite narrow category -- there are many other instances (such as where a work is posted online with the honest but mistaken understanding that such posting is allowed), that an innocent infringement defense wouldn't apply, but that most people would refer to the infringement as either innocent or benign. These things do happen, and as you point out, copyright owners often resolve these cases without litigation. But the point is that the law entitles them to sue and to recover damages, even if the defendant made an honest mistake. Doesn't it seem fair that there ought to be a similar standard for recovering damages from those who cause creative content to be removed from publication by the sending of a false DMCA notice (even where the notice is sent in good faith)? That standard need not be draconian in either case. It seems fair to acknowledge that both online posters and DMCA "noticers" sometimes make honest mistakes, and neither necessarily shouldn't be punished for it -- but there also ought to be a mechanism to make sure that those parties bear the costs of their mistakes so as to discourage such mistakes from recurring.

  4. "But there are quick, constructive ways to deal with the problem"

    Repeal the DMCA?

    "There is no equivalence, moral or otherwise, between making a rare mistake in enforcing against the millions of infringements on the web, and infringing others' copyrights."

    How about a rare mistake in "infringing others' copyrights"? That does happen from time to time you know, in fact, big names do it quite frequently. Often they are people in the political arena or in the music business themselves.

    Just curious.

  5. @Anonymous 8:43:

    Saying that "copyright owners often resolve these cases without litigation" is really misleading. In the context of YouTube videos -- the topic of this post -- copyright owners virtually never resort to litigation. Instead, they merely send a DMCA notice and "move on."

    Quick: name all the cases where a copyright owner has brought an infringement lawsuit over a video posted to YouTube? Off the top of my head, I can think of only 2, and they are both special circumstances of the individual copyright owner trying to make a political point: Jackson Browne's suit against John McCain, and Don Henley's suit against Chuck DeVore. (There may be others I can't think of immediately.)

    My overall point is that people like Cabell who are (justifiably) upset about improper takedowns should concentrate on solving their problem and getting the video back up. In this case, the sender of the notice appears to have been fully cooperative (and apologetic) once apprised of the problem. He could resolved this issue quickly and cheaply with a few emails. Instead Cabell wasted a lot of time and money with a badly pled lawsuit that achieved nothing.

  6. Ben, you asked for any instances where a copyright owner brings a lawsuit over youtube infringement.
    How does the Viacom vs. Youtube case at the bottom of your blog not get included in the list?
    Also, how does this particular case relate to the Stephanie Lenz case where Prince music was playing in the background of her video?

  7. @Anonymous 9:17:

    I was referring to lawsuits against individuals who post infringing videos to YouTube. Those are extremely, extremely rare. The Viacom v. YouTube case is a different animal: it's a suit by copyright owners against a commercial entity they claim is profiting from infringement.

    In the Lenz case, UMG sent a DMCA notice; Lenz sent a counter-notice; and YouTube re-posted the video. Lenz then brought a Section 512(f) suit. UMG never sued.

  8. Ben, if we assume a world where rightholders send large numbers of takedown notices, and we agree that our legal system should create incentives to minimize mistakes, then I don't see how your "just apologize and move on" theory makes any sense.

    There should be an economic price for sloppy and negligent DMCA takedown procedures, otherwise those procedures are not likely to be improved. Particularly as for every person who sends a counter-notice or otherwise raises an objection, there are many victims of mistakes who are not heard.

  9. But Fred, isn't the whole point of the DMCA to deal with the types of Web-based infringement it addresses out of court, except in the most egregious of cases?

    And I'm curious: Do you think there should be an "economic price" for copyright infringement (which is vastly more common than the occasional improper takedown)? Don't you consider it a good thing that in all but a tiny number of cases, copyright owners who find their works infringed on YouTube simply send a DMCA notice, and never sue?

  10. I wonder what court dockets would look like if more judges took the facts of a case and applied the relevant law, instead of looking at the claims that were pled. I know I've read somewhere (maybe the section on complete preemption in Patry on Copyright?) that this is historically consistent with our rules of civil procedure, following the shift from a count-based to a claim-based litigation system.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.