Advanced Copyright Issues on the Internet - Fenwick & West LLP

give rise to a claim under Section 512(f) because the defendant acted in a good faith belief thatthe sale of the hat infringed its copyright and trademark rights and the plaintiffs had failed tosatisfy their burden of demonstrating that the defendant knowingly and materiallymisrepresented that the plaintiffs’ auction was infringing. The court rejected the plaintiffs’argument that a higher standard of good faith should be applied just because the defendant’sagent who issued the takedown notice was a lawyer trained in intellectual property law. 2033(iv) Novotny v. ChapmanIn Novotny v. Chapman, 2034 the defendant made instructional videos in which hedemonstrated a particular method of cutting women’s hair. In 2002, he entered into anagreement with the plaintiffs in which he would deliver originals of his video to the plaintiffs,who would then convert them into digital format and publish and sell them on their Web site asdownloadable streaming media clips. In October of 2004, as sales of the videos began to wane,the defendant sent the plaintiffs an email requesting that they remove his videos from their Website. After the plaintiffs refused to do so, the defendant filed notices of copyright infringementunder the DMCA with the plaintiffs’ Internet service providers, alleging that material on theplaintiffs’ Web site was infringing on the defendant’s copyrights in his videos. Both the Internetservice providers and the Paypal service, which processed payments for the plaintiffs’ Web site,suspended the plaintiffs’ access to their accounts. In response, the plaintiffs removed the videosfrom their Web site. The defendant thereafter filed no further DMCA notices. 2035The plaintiffs accused the defendant of violating Section 512(f) by filing bad faithcomplaints of copyright infringement with the plaintiffs’ Internet service providers and others,with the intent that such complaints would result in the suspension of the plaintiffs’ Internetservices and accounts, and asked the court to enjoin the defendant from filing any more suchcomplaints. 2036 The court denied the injunction on the ground that the injury the plaintiffs soughtto avoid – the damage to reputation and business interests caused by the defendant’s filing ofimproper DMCA complaints with the plaintiffs’ service providers – was not likely to recur sincethe plaintiffs neither were posting the videos at issue on their Web site, nor had they cited anyinterest in re-posting the videos before the underlying legal issues were resolved. 2037(v)BioSafe-One, Inc. v. HawksIn BioSafe-One, Inc. v. Hawks, 2038 the defendants inadvertently copied some textualmaterials from the plaintiffs’ web site into the defendants’ web site. Upon discovering the2032 410 F. Supp. 2d 1010 (D. Colo. 2005).2033 Id. at 1012-13.2034 2006 U.S. Dist. LEXIS 55471 (W.D.N.C. 2006).2035 Id. at *2-5.2036 Id. at *1.2037 Id. at *7-8.2038 2007 U.S. Dist. LEXIS 88032 (S.D.N.Y. Nov. 29, 2007).- 441 -