Appeals Court Finds MPAA Not Liable for Good Faith Exercise of DMCA Notice and Takedown Procedure
December 1, 2004. The U.S. Court of Appeals (9thCir) issued its opinion [13 pages in PDF] in Rossi v. MPAA, a state tort case in which a web site operator (Rossi) alleged that a copyright holder (MPAA) wrongfully served a DMCA notice and take down letter upon his internet service provider. The District Court granted summary judgment to the MPAA. The Court of Appeals affirmed. In particular, it held that the notice and take down provisions require only a subjective good faith belief on the part of the copyright holder, and good faith can be present even where the copyright holder is mistaken.
Michael Rossi operated a web site that stated that subscribers could download full length movies. It also included graphics from some copyrighted movies of the Motion Picture Association of America (MPAA).
The MPAA did not actually download any copyrighted movies from Rossi's web site. In litigation, Rossi argued that contrary to the claims in his web site, no movies were available for download.
The MPAA followed the notice and take down procedure of the Digital Millennium Copyright Act (DMCA), which procedure is codified at 17 U.S.C. § 512(c)(3)(A). It served its notice on Rossi and Rossi's internet service provider (ISP). The ISP notified Rossi that it would terminate his service. He then moved his web site to another ISP.
Nevertheless, Rossi filed a complaint in U.S. District Court (DHawaii) against the MPAA and others alleging tortious interference with contractual relations, tortious interference with prospective economic advantage, libel and defamation, and intentional infliction of emotional distress. Federal jurisdiction was based upon diversity of citizenship.
The District Court found that the MPAA had a good faith basis for its DMCA notice, and that the notice and take down communication was privileged. It granted summary judgment to the MPAA.
Rossi appealed. The Court of Appeals affirmed. It addressed at length the meaning of the term "good faith belief".
Section 512 requires that a notice and take down notification must include, among other things, "A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law".
Rossi argued that this imposes upon the copyright claimant the duty to conduct a reasonable investigation into the allegedly offending website. The Court rejected this. It reasoned that "good faith belief" imposes no objective standard or review. Rather, it creates a subjective standard. The Court stated that it found no DMCA cases on this point. Hence, it relied on cases that construed "good faith" requirements found in other statutes.
Then, the Court found that Rossi raised no genuine issue of material fact as to whether the MPAA acted with good faith. And, since the MPAA's actions were justified, all of Rossi's tort claims must fail.
The Court of Appeals concluded, "When considered in the context of informative case authority, the statutory structure of § 512(c) supports the conclusion that the ``good faith belief´´ requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard of conduct. Applying this subjective good faith standard and viewing the record in the light most favorable to Rossi reflects the absence of a genuine issue of material fact regarding MPAA’s violation of the DMCA. Because the MPAA acted in compliance with the DMCA and was otherwise justified in its response to Rossi's website, Rossi's tortious interference claims must fail. Because the MPAA’s communications were privileged and were well within the bounds of decency, his defamation and intentional infliction of emotional distress claims must fail as well."
This case is Michael Rossi v. Motion Picture Association of America, Inc.,
et al., U.S. Court of Appeals for the 9th Circuit, No. 03-16034, an appeal from
the U.S. District Court for the District of Hawaii, D.C. No. CV-02-00239-BMK, Judge
Barry Kurran presiding. Judge Johnnie Rawlinson wrote the opinion of the Court of
Appeals, in which Judges Jerome Farris and John Noonan joined.