Advanced Copyright Law on the Internet

recordings that were available through iTunes. Accordingly, because the “notification” at issue
was not a notification pursuant to the DMCA, no claim under Section 512(f) could stand.^2954

Universal also argued that the DMCA was not applicable because Apple received a
financial benefit directly attributable to the alleged infringement on the iTunes site and therefore
could not qualify for the Section 512(c) safe harbor.^2955 The court rejected this argument, with
the following observation: “The Court’s conclusion should not be read to imply that an internet
service provider’s inability to meet all of the safe harbor requirements takes a dispute entirely out
of the ambit of the DMCA. Rather, the Court concludes only that where the manner of the
alleged infringement is not of any of the types addressed in 17 U.S.C. §512(c), (d), or (e), notice
of claimed infringement given is not a section 512(c)(3) notification and therefore not subject to
section 512(f).”^2956

(xv) Smith v. Summit Entertainment

In Smith v. Summit Entertainment LLC,^2957 the court denied the defendant’s motion to
dismiss the plaintiff’s Section 512(f) claim because the plaintiff had adequately pled that the
defendant had submitted a DMCA notice to a web site on which the plaintiff had posted a copy
of his song falsely alleging that the song infringed the defendant’s copyright, when in fact the
defendant’s complaint was that the song’s CD cover violated the defendant’s trademark in a
series of films called the “Twilight Saga.” The plaintiff had stated on the song’s CD cover that it
was “inspired by the twilight saga.” The plaintiff’s allegations in his complaint that the
defendant had made an unquestionably false assertion in take down notices, and the song was
taken down, was sufficient to plead a claim under Section 512(f).^2958

(xvi) Ouellette v. Viacom

In Ouellette v. Viacom Int’l, Inc.,^2959 the plaintiff brought claims under Section 512(f)
against Viacom alleging that Viacom improperly issued takedown notices against various videos
the plaintiff posted to YouTube containing Viacom programs together with the plaintiff’s
critiques of those programs. The plaintiff claimed Viacom had failed to evaluate whether the
plaintiff’s use of its material was fair use before issuing the takedown notices. A magistrate
judge recommended that the claims be dismissed with prejudice because the plaintiff (who was
pro se) did not plead facts sufficient to show that Viacom had actual knowledge the plaintiff
made fair use in posting and critiquing the Viacom videos and that Viacom acted in subjective
bad faith in issuing its takedown notices. The magistrate judge also concluded that the plaintiff’s
allegation that Viacom used scanning software to identify infringing material without human

(^2954) Id. at 49-50.
(^2955) Id. at 51 n.11.
(^2956) Id.
(^2957) 2011 U.S. Dist. LEXIS 60246 (N.D. Ohio June 6, 2011).
(^2958) Id. at 1-3, 7-8.
(^2959) 2012 U.S. Dist. LEXIS 33556 (D. Mont. Mar. 13, 2012).