Advanced Copyright Issues on the Internet - Fenwick & West LLP

infringing could not be a “material” misrepresentation. Second, the court noted that MP3tuneshad suffered no injury because it took no action other than filing an anticipatory lawsuit. Third,the court held that an allegation of a possibility that some of the songs on the representative listmight be non-infringing was too speculative to meet applicable pleading standards, soamendment of the counterclaim would be futile. 2063(ix) Brave New Films v. WeinerIn Brave New Films 501(C)(4) v. Weiner, 2064 Brave New Films uploaded to YouTube avideo containing footage from The Michael Savage Show in which Savage made disparagingremarks about Muslims. The uploaded video criticized Savage’s remarks. The syndicator ofSavage’s show, Original Talk Radio Network (OTRN), sent a DMCA takedown notice toYouTube, alleging that the video posted by Brave New Films was infringing. Brave New Filmssubmitted a counter-notice to YouTube and instituted a lawsuit against Savage and OTRN,seeking a declaratory judgment that the video did not infringement copyrights held by OTRN orSavage, and alleging misrepresentation in violation of Section 512(f). 2065Savage sought to avoid the Section 512(f) claim against him by arguing that thetakedown notice submitted to YouTube by OTRN was defective, in that it did not allege a goodfaith belief that Brave New Films’ use of the video was unauthorized, and that a notice not incompliance with all requirements of Section 512(c)(3)(A) could not form the basis for a Section512(f) claim. The court rejected Savage’s arguments on two grounds. First, OTRN stated in itstakedown notice under penalty of perjury that the information in the letter was accurate and thatYouTube had posted the video without authorization, which the court held was sufficient tosatisfy the “good faith belief” requirement of Section 512(c)(3)(A). Second, the court ruled thatthe safe harbor provision of Section 512(c)(3)(A) and its attendant requirements are to protectOSPs from liability and cannot be asserted as a defense to Section 512(f) claims. 2066(5) Other ProvisionsSection 512(g) provides that a Service Provider shall not be liable for the good faithdisabling of access to or removal of material or activity claimed to be, or appearing from thefacts and circumstances to be, infringing (regardless of whether the material or activity isultimately determined to be infringing). However, if such removal is taken pursuant to a noticegiven to the Service Provider pursuant to the provisions of the third safe harbor (which will bereferred to herein as the “safe harbor notice”), then Section 512(g)’s limit on liability isconditioned upon compliance with the following. The Service Provider must (i) take reasonablesteps to promptly notify the subscriber that it has removed or disabled access to the subscriber’sallegedly infringing material; (ii) upon receipt of a counter notification from the subscriberstating under penalty of perjury that it has a good faith belief that the materials were removed or2063 Id. at 346-47.2064 626 F. Supp. 2d 1013 (N.D. Cal. 2009).2065 Id. at 1014-15.2066 Id. at 1017-18.- 447 -