Authors: Margaret A. Esquenet, Danielle Wright Bulger
For the first time, a party which received a DMCA takedown notice with material misrepresentations has been awarded money damages. Automattic Inc. v. Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal. Oct. 6, 2014).
The blog post spurring the takedown was uploaded to WordPress.com─a web-publishing platform owned by plaintiff Automattic─and included information that student journalist and plaintiff Oliver Hotham received in response to his inquiry to Straight Pride UK. Specifically, Hotham received a document entitled “Press Statement,” from a person who identified himself as Straight Pride UK’s press officer. Hotham’s blog post characterized Straight Pride UK as an organization deeply troubled by the acceptance of homosexuality, and included quotations from the Press Statement he received. Shortly thereafter, Straight Pride UK issued a DMCA takedown notice, asserting that the blog infringed the organization’s copyrights. Automattic removed the initial posting, and investigated additional notices sent by Straight Pride UK. Asserting that the DMCA notices were not issued in compliance with section 512(f) of the Digital Millennium Copyright Act because the defendant “knowingly and materially misrepresented” that copyright infringement occurred, Automattic and Hotham sued to recover the costs and fees they expended reviewing the notices, communicating with each other and Straight Pride UK, disabling the posts, handling press requests, and on the litigation.
A magistrate judge for the U.S. District Court for the Northern District of California granted the motion for default judgment and awarded $960 in damages for Hotham’s lost work and time, $1860 for time spent by Automattic’s employees, and $22,264 for attorneys’ fees incurred by Automattic. “[T]he Court finds that Defendant knowingly misrepresented that Hotham violated his copyright because Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright. Moreover, there can be no dispute that Defendant knew, and indeed, specifically intended, that the takedown notice would result in the disabling of Hotham’s article[,]” Magistrate judge Joseph Spero wrote in the opinion. In relying on Lenz v. Universal Music Corp., previously decided by the Northern District of California, the court also recognized that use of the term “any damage” in Section 512(f) indicates the statute should be construed broadly, and “suggests strong Congressional intent that recovery be available for damages even if they do not amount to… substantial economic damages.”
Although the court awarded damages for the costs of the suit and the expenditure of resources dealing with the takedown notice, the Northern District denied monetary relief for Plaintiffs’ alleged damages to reputational harm, Hotham’s alleged emotional distress, and Hotham’s alleged chilled speech.
Only time will tell whether awarding damages for material misrepresentations in DMCA takedown notices will become more common. This case does signify, however, that if a notice has false information, senders may be held liable.
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