provider. The plaintiff filed a claim under Section 512(f), alleging a material misrepresentation
of infringing activity in the takedown notice.^2966
On a motion to dismiss, the court seriously questioned whether the plaintiff had stated a
viable claim, giving the plaintiff twenty-one days to show cause why the complaint should not be
dismissed. The court found that the takedown notice, which stated accurately that the
defendant’s likeness had been copied without her express authorization and published by the
plaintiff without permission, appeared to conform to the letter of the requirements of Section
512(c)(3). The court noted that it was true that if this were a lawsuit brought by the defendant
against the plaintiff for copyright infringement, the plaintiff would have a plausible, and even
dispositive, fair use affirmative defense.^2967 “But there is no requirement in the DMCA that a
notice-giver inform the service provider of an infringer’s possible affirmative defenses, only that
she affirm her good faith belief (as appears to be the case here) that the copyrighted material is
being used without her (or her agent’s) permission. Seen in this light, there is no material
misrepresentation by [the defendant] of infringement, as a viable cause of action under section
512(f)(1) would require.”^2968 The court did not cite any of the cases requiring the notice provider
to consider a fair use defense before submitting a takedown notice.
In a subsequent opinion after briefing by the parties and oral argument in response to the
court’s order to show cause, the court again denied the defendant’s motion to dismiss.^2969 The
court noted that the key issue to be decided was the proper test of what is required of a copyright
owner prior to filing a takedown notice, including the extent to which a defense of fair use must
be considered. The court noted that the Ninth Circuit in Rossi had specifically rejected the
imposition of an objective standard of review for gauging the reasonableness of a copyright
owner’s conduct in notifying parties of an allegedly infringing web site, instead concluding that
the “good faith belief” requirement under Section 512(c)(3)(A)(v) encompasses a subjective
standard. And in enacting the DMCA, the court noted that Congress did not require that a notice
giver verify that he or she had explored an alleged infringer’s possible affirmative defenses prior
to acting, only that he or she affirm a good faith belief that the copyrighted material was being
used without permission. To have required more would have put the takedown procedure at
odds with Congress’s express intent of creating an expeditious, rapid response to potential
infringement on the Internet.^2970
Citing the Lenz case (discussed in Section III.C.6(b)(4)(vi) above), the plaintiff argued
that a consideration of fair use was required to give meaning to Section 512(c)(1)(A)(v)’s
requirement that the copyright owner’s declaration state that the appropriation of the copyrighted
material is not authorized by “the law.” The court rejected this argument, noted that Lenz was
only a district court decision, and in any event in a follow-up opinion the Lenz court had
(^2966) Id.
(^2967) Id. at 7.
(^2968) Id. at 8.
(^2969) Tuteur v. Crosley-Corcoran, 961 F. Supp. 2d 333, 344 (D. Mass. 2013).
(^2970) Id. at 341-44.