MI2N posts this press release on the recently-decided Rossi v. MPAA in the Ninth Circuit: Ninth Circuit Court Ruling Gives Unmade Movie Future Protection Under DMCA. The point of the press release is that the “good faith” provisions of the DMCA allow the MPAA to submit (and prevail on) a notice and takedown even when the notice is factually impossible, to wit:
The MPAA claimed that, in 2001, http://www.InternetMovies.com made available for illegal download the third installment of The Lord of the Rings, not finished until 2003. The MPAA issued a cease and desist order to InternetMovies.com’s ISP to shut down the site.
Interestingly, the Ninth Circuit’s opinion never discusses the content of the notice and takedown, other than to assert that:
As discussed above, the MPAA exercised its statutory rights and acted reasonably in communicating with Rossi’s ISP about the allegedly infringing material on internetmovies.com. Accordingly, the MPAA’s statements to Rossi’s ISP were privileged.
“Privileged” — maybe no longer, now that Rossi seems to have taken his complaint online. Wonder if his lawyer knows he’s taking this approach?
This is the kind of opinion that demonstrates why you need to bring in professionals — there are enough terms of art in the writeup that it’s only possible for a layman like myself to grasp the basic elements. In this case, the opinion focuses on the distinctions between “good faith belief” and and an objective standard in submitting a notice and takedown, and gives some surprisingly broad (at least, IMHO) leeway to copyright holders:
A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. […] Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.
Now, it appears that Rossi is taking his argument public, asserting that the MPAA knew full well that the couldn’t possibly have the LoTR:RoTK available for download in 2001. It will be interesting to see if this goes anywhere.