Advanced Copyright Law on the Internet

substantially retreated from its earlier ruling, acknowledging that in light of Rossi, the mere
failure to consider fair use would be insufficient to give rise to liability under Section 512(f) and
that a plaintiff must show that the defendant had some actual knowledge that its takedown notice
contained a material misrepresentation.^2971

In support of her motion to dismiss, the defendant stated that prior to sending the
takedown notices she sought the advice of two attorneys. The second attorney submitted an
affidavit stating that he considered, and rejected, the plaintiff’s argument that her posting of the
photo constituted fair use. The plaintiff objected to the court’s consideration of this affidavit in
deciding a motion to dismiss, arguing that any reliance on material outside the four corners of the
complaint would impermissibly convert the motion to dismiss to one for summary judgment,
notice of which the court had not provided to the parties under Rule 12(d). The court noted the
complaint’s allegations that the plaintiff’s counsel had a Jan. 10, 2013 conversation with the
defendant’s second attorney in which he allegedly conceded that it was obvious the defendant
had no copyright claim against the plaintiff. Because the attorney adamantly denied such
assertion, the court found a dispute of material fact sufficient to defeat a brevis dismissal.
Accordingly, the court concluded that a knowing and material misrepresentation had been
adequately pled and denied the defendant’s motion to dismiss.^2972

(xviii) Flava Works v. Gunter

The facts of this case are discussed in Section III.C.2(m) above. myVidster asserted a
counterclaim against Flava under Section 512(f). The court denied Flava’s motion to dismiss the
counterclaim, finding that it had been adequately pled. myVidster alleged that Flava knowingly
misrepresented that certain infringing content was available on myVidster’s web site despite
having received notification from myVidster that the content had been removed, and that Flava
did so purposefully, in an effort to improperly exaggerate the actual amount of infringing content
available on the myVidster.com web site. The court found that these allegations allowed one to
draw a reasonable inference of liability and were sufficient to present a story that held together,
which was all that was required under federal pleading standards.^2973

(xix) Disney Enterprises v. Hotfile

The facts of this case are set forth in Section III.C.6(b)(1)(iii).x above. Hotfile brought a
counterclaim against one of the plaintiffs, Warner Brothers, under Section 512(f) based on the
fact that Warner had submitted several hundred erroneous takedown notices with respect to some
content that it did not own, including a popular and innocuous free software program known as
JDownloader, and had relied heavily on automated software technology to identify files for

(^2971) Id. at 343.
(^2972) Id. at 341& n.16, 344.
(^2973) Flava Works, Inc. v. Gunter, 2013 U.S. Dist. LEXIS 125294 at *6-7 (N.D. Ill. Sept. 3, 2013).