Discussing §512 (f) of the DMCA: Pt. 2: Rossi v. MPAA

§512 (c) (3) of the Digital Millenium Copyright Act states that a DMCA complaint must include:

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Moreover, 512 (f) states:

"Any person who KNOWINGLY misrepresents . . . that material or activity is infringing. . . shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer . . . who is injured by such misrepresentation, as the result of the service provider relying upon such representation in removing or disabling access to the material or activity claimed to be infringing . . ."


This is the second in a series of videos that will explore these sections of the DMCA in great detail.


Rossi v. Motion Picture Association of America Inc.
Ninth Circuit Court of Appeals (2004)

http://www.ca9.uscourts.gov/ca9/newop...



Michael Rossi operated a website called internetmovies.com. The website had a banner saying "Join to download full length movies online now! New movies every month"; "Full Length Downloadable Movies"; and "NOW DOWNLOADABLE."

These messages were followed by graphics for a number of MPAA copyrighted motion picture. In fact, this was a lot of puffery and you couldn't really download movies from Rossi's website.

But an agent from the MPAA saw his website and sent a DMCA to his service provider. This took his website down, and Rossi sued the MPAA.

When you file a DMCA complaint you must sign a statement that you have a good faith belief that the material you are complaining about was not authorized by you or the law.

Rossi wanted the court to adopt a rule that in order to have "a good faith belief" of infringement, the person filing the DMCA is required to conduct a reasonable investigation into the allegedly offending material. In other words, would an OBJECTIVE and prudent observer believe that he was really infringing on MPAA's copyright


The MPAA argued that "good faith belief" implied a subjective belief—what did they actually believe as opposed to what a person doing a reasonable investigation believes.

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The Court found that Congress built a subjective good faith standard into the DMCA when they wrote it—not an objective "reasonableness" standard.

Quoting from the Court:

"In §512 (f) Congress included an expressly limited cause of action for improper infringement notifications, imposing liability only if the copyright owner's notification is a knowing misrepresentation" . . .

"A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake . . . Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.


The Rossi court made a blatant mistake in its evaluation of the DMCA. It ignored § 512 (c) (3)(vi) of the DMCA which states that the DMCA complaint must contain:

"A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

Congress clearly wanted the person filing the complaint to state that the information in the notification was accurate. What would be the point of this requirement if Congress didn't want the filer to verify that his complaint had some merit? Why would Congress want the complaint filer to state that the information in the complaint was accurate if it didn't want to require the filer to do at least a reasonable investigation into the accuracy of the complaint? And one vital piece of information in the complaint is that the work being complained about INFRINGED on the copyright owner's work.

Title 17 § 107 of the U.S. Code deals with Fair Use. It says:

". . . the fair use of a copyrighted work. . . is not an infringement of copyright."

So Congress wanted the DMCA filer to swear that the work being complained about infringed upon his work AND Congress has also stated that if the work falls within Fair Use then no infringement has taken place. The only logical conclusion to draw is that Congress wanted the DMCA complaint filer to make at least a reasonable investigation to determine that the work he was complaining about didn't fall within Fair Use.