![]() ![]() She said that if defendant did consider fair use, it would not have sent the DMCA takedown notices. Plaintiff testified in her deposition that she “knew” defendant did not consider fair use. The court found that plaintiff’s evidence did not show otherwise. So the court found that defendant, by relying on their attorneys’ investigations and opinions, reasonably believed in good faith that plaintiff’s videos infringed and did not constitute fair use, prior to filing the takedown notices. And they testified that they evaluated whether the uploads were fair use. In this case, defendant’s attorneys testified in affidavits that they investigated whether plaintiff’s YouTube uploads infringed. Counsel’s consideration of fair use was sufficient What kind of belief must the copyright holder have to be in line with the conduct required of the DMCA? The Lenz court held that a copyright holder’s subjective good faith belief that a use is both unauthorized and not fair use serves as a complete defense to a misrepresentation claim. What diligence must a takedown notice sender undertake? And the court held that failure to consider fair use before issuing a takedown notice is a misrepresentation of copyright infringement. 2016)), the court held that having a “good faith belief” that certain content infringes requires that the copyright holder, before sending a takedown notice, consider if the potential infringement is a fair use. Universal Music Corp., 815 F.3d 1145 (9th Cir. In 2016, the Ninth Circuit evaluated the questions of what it means for a DMCA takedown notice sender to have a “good faith belief” and to “knowingly materially misrepresent” that content infringes. Copyright law provides that if use of content is fair use, then it is not infringing. The copyright holder can be liable for damages if it “knowingly materially misrepresents” that the identified content infringes. The notice must state that the copyright holder has a “good faith belief” that the identified content infringes. The DMCA relieves online service providers (such as YouTube) of liability for storing copyright infringing content if, among other things, the service provider properly responds to the copyright holder’s takedown notice. On appeal, the court affirmed the lower court’s finding that defendant did not knowingly materially misrepresent facts when it sent the DMCA takedown notices to YouTube. Plaintiff sought review with the Eleventh Circuit. The district court granted defendant’s summary judgment motion. §512(f), which provides for recovery when a person sends a DMCA takedown notice based on “knowingly materially misrepresented” facts. Defendant sent takedown notices under the Digital Millennium Copyright Act (DMCA) to YouTube alleging that plaintiff infringed defendant’s copyright. Because successful DMCA takedowns can have strong impacts on channels, it seems embarrassing that such a large corporation could let users assume the identity of copyright owners so easily on such a regular basis.Plaintiff ran a YouTube channel. YouTube isn't named as a defendant in the suit, but Bungie does seem interested in calling out the platform's lax management of DMCA takedown requests. "Thanks to YouTube’s easily-gamed reporting system, the attack was a success, and videos were removed (and YouTubers given ‘copyright strikes’ that, under YouTube rules, threaten the future viability of their YouTube channels) on the basis of the Fraudulent Takedown Notices," Bungie's lawsuit states. It took Google's video platform three days to mobilize resources to stop the attack. ![]() The studio documented how when it became aware of the false takedowns, it reached out to several contacts at the company who were all out of office.īungie's representatives finally got ahold of YouTube's director of gaming publishers and commerce content partners, who asked if they'd filed a support ticket. ![]() The thrust of Bungie's lawsuit is aimed at identifying and penalizing the individuals responsible for the false takedowns, but the company also had harsh words for how YouTube handled the situation. To the impacted content creators, it looked like Bungie had decided to reverse its normally lax content policy for YouTubers and streamers.Įxcept it hadn't. This turn of events is an unusual escalation of a niche community issue that apparently began when Bungie filed its own DMCA takedown requests against a group of users who uploaded copies of Destiny's soundtrack to YouTube.Īs spotted by Torrentfreak (via Kotaku), said users turned around and filed their own DMCA requests against Destiny content creators, using an email account that resembled the account used by Bungie in its own filing. If that sentence is a lot to wrap your head around, it's understandable.
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