Advanced Copyright Law on the Internet

concluded that the plaintiffs’ representation that any link to its copyrighted recording was
infringing could not be a “material” misrepresentation. Second, the court noted that MP3tunes
had 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 list
might be non-infringing was too speculative to meet applicable pleading standards, so
amendment of the counterclaim would be futile.^2935

(ix) Brave New Films v. Weiner

In Brave New Films 501(C)(4) v. Weiner,^2936 Brave New Films uploaded to YouTube a
video containing footage from The Michael Savage Show in which Savage made disparaging
remarks about Muslims. The uploaded video criticized Savage’s remarks. The syndicator of
Savage’s show, Original Talk Radio Network (OTRN), sent a DMCA takedown notice to
YouTube, alleging that the video posted by Brave New Films was infringing. Brave New Films
submitted 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 or
Savage, and alleging misrepresentation in violation of Section 512(f).^2937

Savage sought to avoid the Section 512(f) claim against him by arguing that the
takedown notice submitted to YouTube by OTRN was defective, in that it did not allege a good
faith belief that Brave New Films’ use of the video was unauthorized, and that a notice not in
compliance with all requirements of Section 512(c)(3)(A) could not form the basis for a Section
512(f) claim. The court rejected Savage’s arguments on two grounds. First, OTRN stated in its
takedown notice under penalty of perjury that the information in the letter was accurate and that
YouTube had posted the video without authorization, which the court held was sufficient to
satisfy the “good faith belief” requirement of Section 512(c)(3)(A). Second, the court ruled that
the safe harbor provision of Section 512(c)(3)(A) and its attendant requirements are to protect
OSPs from liability and cannot be asserted as a defense to Section 512(f) claims.^2938

(x) Cabell v. Zimmerman

In Cabell v. Zimmerman,^2939 the plaintiff alleged that the defendant, on behalf of the
Actors’ Equity Association (AEA), improperly caused his proprietary material to be blocked
from YouTube. AEA had rights to control public display of works created pursuant to the terms
of a contract between AEA and its member actors, presumably to ensure that its actors received
royalties from any public display of their work. AEA sent a takedown notice to YouTube
alleging that the plaintiff’s video, “Pretty Faces,” was infringing because it was subject to an
AEA contract. The plaintiff responded to YouTube and AEA with an email expressing anger

(^2935) Id. at 346-47.
(^2936) 626 F. Supp. 2d 1013 (N.D. Cal. 2009).
(^2937) Id. at 1014-15.
(^2938) Id. at 1017-18.
(^2939) 2010 U.S. Dist. LEXIS 25486 (S.D.N.Y. Mar. 12, 2010).