review for fair use was insufficient to support a Section 512(f) claim because no facts were pled
that Viacom had actual knowledge of the software’s deficiencies.^2960
Upon objection by the plaintiff to the magistrate judge’s recommendations, the district
court adopted the findings and recommendations of the magistrate judge in full.^2961 In
elaboration of the magistrate’s recommendations, the district court noted that the Ninth Circuit
had established a high bar for plaintiffs for Section 512(f) claims in the Rossi case,^2962 under
which a defendant can be liable only if it knew that the subject material was not infringing when
it issued its takedown notices. Without such a standard, copyright owners like Viacom could
face limitless lawsuits just by policing its material on the Internet. The district court ruled that,
contrary to the plaintiff’s argument that interrogatories were the correct means for him to
discover Viacom’s intent in issuing its takedown notices to YouTube, Section 512(f) required
him to allege facts, at the pleading stage, that demonstrate Viacom acted without a good faith
belief. The court agreed with the magistrate that the plaintiff had not pled any facts meeting the
subjective standard or establishing that his videos were fair use of Viacom’s copyrighted
materials.^2963
With respect to the plaintiff’s allegation that Viacom’s use of scanning software violated
the good faith requirement, the district court noted that the essence of the plaintiff’s objection
was that Viacom’s history established that it used its software to abuse the takedown process, a
form of “Internet bullying.” The court ruled that the plaintiff could not satisfy his burden under
the DMCA by alleging that Viacom had acted improperly in the past with respect to others.
Rather, the Rossi case required him to plead factual allegations that Viacom acted improperly in
his case by pleading facts that Viacom knew that its scanning software was flagging his non-
infringing videos and that Viacom issued takedown notices nonetheless. Because the plaintiff
had not done so, he had failed to state a sufficient Section 512(f) claim. The court granted
Viacom’s motion for judgment on the pleadings.^2964
(xvii) Tuteur v. Crosley-CorcoranThis case arose out of a polemic between two bloggers who hosted blogs taking
diametrically opposed views on the safety and virtues of home birthing. After a particularly
acrimonious exchange, the defendant posted a photograph of herself in which she made an
obscene gesture with her middle finger to give the plaintiff “something else to go back to her
blog and obsess about.”^2965 The plaintiff, without the defendant’s permission, copied the photo
and posted it on her blog. The defendant then sent a cease and desist letter to the plaintiff
alleging copyright infringement and sent a DMCA takedown notice to the plaintiff’s web site
(^2960) Id. at 1, 11-13.
(^2961) Ouellette v. Viacom Int’l, Inc., 2012 U.S. Dist. LEXIS 68109 (D. Mont. Apr. 25, 2012).
(^2962) Rossi v. Motion Picture Ass’n of Am., Inc., 391 F.3d 1000 (9th Cir. 2004).
(^2963) Ouellette, 2012 U.S. Dist. LEXIS 68109 at 7-10.
(^2964) Id. at 10-11, 13.
(^2965) Tuteur v. Crosley-Corcoran, 2013 U.S. Dist. LEXIS 51606 at 2 (D. Mass. Apr. 10, 2013).