512(f) Declare Fails within the 11th Circuit-Johnson v. New Future Christian Heart

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This is a longstanding and complex copyright waiver dispute that has been triggering my Westlaw warnings for years. I only blogged it once, in 2017, when the 512 (f) request survived a rejection request. At the time I wrote, "Given the 512 (f) track record, Johnson has a good chance of reaching a verdict in their favor." Indeed, she lost the right to a summary judgment. She appealed to the 11th Circle, where she sent a brief Per Curiam statement.

Citing the Lenz case, the court states that DMCA senders must consider fair use prior to sending their communications. While that's good, it doesn't mean anything in practice. In a previous blog post, I made this hypothetical deposition protocol:

Q: Have you considered fair use?
A: Yes
Q: What steps did you take to evaluate fair use opportunity?
A: I've thought about it and found that it is probably not the case

As long as 512 (f) enables the sender's subjective good faith, the sender automatically defeats a 512 (f) request with such a filing protocol. This is exactly what happened in this case:

NDCC's attorney provided affidavits stating that they conducted investigations prior to filing to determine whether Johnson's offices were violated or fair use. The first attorney, Thomas Sadaka (now disfellowshipped?), Investigated and found that “Johnsons Youtube Videos and website videos () infringe (ed) the copyrights of Paula White Ministries "and" there was a good basis for bringing a lawsuit to protect the copyrights of (PMW). "A second, different attorney, Vanessa Braeley (is that her?), Stated," (h) aving concluded that the use of Ms. Johnson was a violation and not fair use. I submitted a takedown notice to Youtube on behalf of PMW. “As a result, NDCC relied on the investigation and opinions of its attorneys, and had a good faith belief that Johnson's videos prior to the filing of acceptance notices were in violation and not fair use.

In other words, two different lawyers said they thought about fair use and decided it wasn't. I found it difficult to confirm that both lawyers have knowledge of copyright law, but fair use does not appear to be required. On the advice of the lawyers, the plaintiff called BS. From their deposit:

Question. "Well … there could be another option, couldn't it, Ms. Johnson? You could have considered the fair use doctrine and concluded that your use was not a fair use doctrine. Isn't that also one Alternative? "

Reply. "Yes. But if she comes to that conclusion, I have to say that she doesn't know much about copyright infringement …"

Let's say Ms. Johnson is right and the NDCC attorneys knew nothing about copyright or fair use. Like everyone else, this dish says 🤷‍♀️. If the sender contemplates fair use, even if it is not believable, the request for 512 (f) will fail. Like here.

I don't know if the Senate Judiciary Committee will continue to hold DMCA reform hearings. There is not much capacity for further hearings due to the pre-election period. Still, a hearing on 512 (f) would be helpful. Currently it is essentially non-minable. Without it, copyright owners can freely send dubious acceptance notices without accountability, which is the basis for abusive acceptance.

Case Quote: Johnson v New Destiny Christian Center Church, 2020 WL 5289881 (11th Cir. September 4, 2020)

Previous contributions to Section 512 (f):

* Court orders rights holder to withdraw DMCA takedown notices sent to Amazon – Beyond Blond v. Heldman were sent
* Another 512 (f) claim fails – Ningbo Mizhihe versus Doe
* Video excerpts are deemed fair use (and another 512 (f) claims fail) – Hughes v. Benjamin
* How have the cases in Section 512 (f) developed since 2017? (Spoiler: Not good)
* Another section 512 (f) fails – ISE v Longarzo
* Another 512 (f) case fails – glove v. Perret
* A DMCA section 512 (f) survives layoff – ISE vs Longarzo
* DMCAs unhelpful 512 (f) prevents helpful state legal claims – Stevens vs Vodka and Milk
* Section 512 (f) appeal survives motion to reject – Johnson v New Destiny Church
* "Reaction" video protected by fair use – Hosseinzadeh v. Small
* 9. Advertising pages with fair commitment while dancing Baby Takedown Case – Lenz v. Universal
* Two 512 (f) judgments in which the litigants contest copyright
* To win a 17 USC 512 (f) Case-Automattic against Steiner, a standard judgment is required
* Vague takedown notice targeting Facebook pages leads to potential liability – CrossFit vs Alvies
* Another claim of 512 (f) fails – Tuteur versus Crosley-Corcoran
* 17 USC 512 (f) is dead – Lenz versus Universal Music
* 512 (f) Plaintiff cannot make any discovery to support allegations of false shutdowns – Ouellette v Viacom
* Updates to cross-border copyright enforcement on "Grandma Was Run Over by a Reindeer" – Shropshire v. Canning
* 17 USC 512 (f) Prevents state legal claims for fake copyright removal notices – Amaretto vs. Ozimals
* 17 USC 512 (f) claim against "Twilight" studio survived motion for rejection – Smith v Summit Entertainment
* The Cease & Desist letter to iTunes is not covered by 17 USC 512 (f) – Red Rock versus UMG
* Copyright takedown notice can only be implemented if there is an actual takedown amaretto against Ozimals
* Second Life was instructed to disregard a copyright holder's takedown notice – Amaretto Ranch Breedables v. Ozimals
* Another copyright owner sent a notice of improper dismantling and faced 512 (f) Liability – Rosen vs HSI
* Furniture dealers excluded from sending eBay VeRO communications – Design Furnishings v. Zen Path
* Disclosure of the content of privileged communication via email, blog and chat leads to waiver – Lenz v. Universal
* YouTube uploader cannot sue sender for incorrect takedown notification – Cabell v. Zimmerman
* Rare Decision on Damage When Sending Fake Copyright Takedown Notice – Lenz v. Universal
* 512 (f) lawsuit dismissed on grounds of jurisdiction – Project DoD v Federici
* Dismissed Biosafe-One against Hawks
* Michael Savage takedown letter could violate 512 (f) – Brave New Media v Weiner
* Fair use – It's the law (for what it's worth) – Lenz v. Universal
* Copyright holder of sending DMCA takedown notices – Biosafe-One v. Hawks
* New (ish) report on 512 takedown notices
* Can 512 (f) support an injunction? Novotny v. Chapman
* Allegedly false VeRO notification of an alleged non-appealable violation – Dudnikov v MGA Entertainment

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