Cabell v. Zimmerman

Defendant’s improper takedown notice did not constitute copyright infringement where plaintiff alleged no affirmative copying of its work and defendant’s failure to independently investigate whether a video was infringing prior to sending the takedown notice did not constitute misrepresentation under 17 U.S.C. 512(f).

Plaintiff Robert Cabell uploaded a video called “Pretty Faces” to YouTube. Acting on a tip, the Actors’ Equity Association (“AEA” or Defendant”) sent a takedown notice to YouTube, representing that the video was subject to an AEA contract. YouTube then removed or disabled access to the video and informed Plaintiff that it had done so. Plaintiff, upset about the removal of “Pretty Faces,” confronted AEA and YouTube, and AEA responded that when it initially sent the takedown notice it believed that the uploaded video was improper but had since discovered that it was not, in fact, subject to an AEA contract.

In July 2009, plaintiff filed a state court action against AEA alleging, inter alia, that through its actions, AEA caused “property damage, loss of personal property, loss of time from work, loss of use of property and personal injury.” The state court dismissed plaintiff’s action for failure to state a claim and stated that “to the extent that plaintiff seeks redress on copyright claims, this court lacks subject matter jurisdiction, which lies exclusively in federal court.”

In December 2009, plaintiff filed the present action in the Southern District of New York for copyright infringement, libel, lost business opportunity, unlawful seizure of property, and tortious interference with contract relations. In particular, plaintiff alleged that AEA violated his exclusive right to distribute and publicly display the video under 17 U.S.C. 106(3) & (5). Defendant moved to dismiss on the basis that plaintiff failed to allege that defendant actually copied any of plaintiff’s work.

The court agreed with defendant that plaintiff’s copyright claim failed as a matter of law. First, it noted that plaintiff was essentially arguing a negative copyright claim – that defendant interfered with plaintiff’s rights to display and distribute by sending a takedown notice to YouTube and not by affirmatively copying plaintiff’s work. Plaintiff argued that language from two Southern District of New York opinions indicated that copyright infringement could be found from “unauthorized copying or a violation of one of the other exclusive rights afforded copyright owners pursuant to the Copyright Act,” and thus unauthorized copying was not the sole violation possible. The court, however, rejected this view and noted that the two cases cited involved affirmative copying of plaintiffs’ copyrighted works.

The court then indicated that plaintiff’s claims were more appropriately brought under 17 U.S.C. 512(f) which imposes liability for material misrepresentations that material or activity is infringing. However, the court held that such a claim would be inappropriate here because 512(f) required a defendant to have actual knowledge that it was misrepresenting a fact. Because plaintiff alleged no fact that suggested defendant knew the video was not infringing, it did not state a claim under 512(f). Further, the court held that the negligent actions alleged in the complaint – namely, AEA’s failure to investigate the tip it received prior to sending the YouTube notice – were insufficient to impose liability under 512(f). Having dismissed plaintiff’s copyright claims, the court declined to exercise jurisdiction over his remaining state claims.