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?