(xx) Flynn v. Siren-BookstrandIn this case, the plaintiff was the author of numerous books of fiction, with respect to
which she had a series of contracts with the defendant to publish them. Each contract gave the
defendant a right of first refusal to publish any book that was a sequel to the book covered in the
contract. A dispute arose with respect to two of the author’s books. The defendant requested
that changes be made to the books, the author refused, and published the books herself on
Amazon. The defendant claimed that the books were sequels to others of the author’s books the
defendant had published and sent takedown notices to Amazon, which took the books off its site
in response. The plaintiff brought a claim against the defendant alleging that the takedown
notices violated Section 512(f) because the defendant must have known, based on the parties’
prior dealings, that it had no claim to the copyright in either book.^2978
The plaintiff sought a temporary restraining order from the court, ordering the defendant
to cooperate with her in instructing Amazon to restore access to the two books on its site and to
enjoin the defendant from interfering further with her efforts to publish the books. The plaintiff
argued that the defendant’s violation of a federal statute – here, Section 512(f) of the DMCA –
allowed the court to presume the existence of irreparable harm to her and the public for purposes
of the injunctive relief she sought. The court noted it is true that, where Congress expressly
provides for injunctive relief to prevent violations of a statute, a plaintiff need not demonstrate
irreparable harm to secure an injunction. However, the plaintiff had not identified any portion of
the DMCA providing for injunctive relief to remedy or prevent violations of Section 512(f), nor
had the court identified any such provision. To the contrary, Section 512(f) provides solely for
an award of damages. The plaintiff therefore was required to demonstrate irreparable harm
under the traditional equitable factors for injunctive relief, which she had failed to do.^2979
(xxi) Crossfit v. Alvies (based on a trademark claim
under the DMCA)
The case of CrossFit, Inc. v. Alvies^2980 raised the interesting question of whether a
takedown notice issued under the DMCA based on an alleged violation of a trademark, rather
than a copyright, is proper. The plaintiff was the owner of a trademark in CROSSFIT pertaining
to fitness training services. The defendant, a stay-at-home mother of four children, launched a
blog at crossfitmamas.blogspot.com and created a “CrossFit Mamas” Facebook page. She used
the blog to post daily high-intensity interval training routines. A CrossFit representative
contacted the defendant and demanded that she stop using the CROSSFIT name on her blog and
affiliated Facebook page. CrossFit also sent a DMCA takedown notice to Facebook. The
defendant renamed her blog but a dispute continued over CrossFit’s demands that the defendant
delete over two years of blog posts. CrossFit filed an action asserting trademark infringement,
false designation of origin, trademark dilution and cyberpiracy. The defendant filed a
counterclaim under Section 512(f), alleging that CrossFit made material misrepresentations in its
(^2978) Flynn v. Siren-Bookstrand, Inc., 2013 U.S. Dist. LEXIS 135095 at 1-5 (D. Neb. Sept. 20, 2013).
(^2979) Id. at 7-14.
(^2980) 2014 U.S. Dist. LEXIS 7930 (N.D. Cal. Jan. 22, 2014).