Metropolitan News-Enterprise


Thursday, December 2, 2004


Page 1


Ninth Circuit Rules:

Digital Copyright Act’s Good Faith Requirement Is Subjective


By DAVID WATSON, Staff Writer


The “good faith” required under the Digital Millennium Copyright Act of 1998 to demand the shutdown of an allegedly infringing Web site is subjective, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In what it said was the nation’s first ruling interpreting the term as used in 17 U.S.C. Sec. 512(c)(3)(A)(v), the court rejected the contention of Web site operator Michael J. Rossi that the Motion Picture Association of America Inc. should have determined whether it was actually possible to download copyrighted material from his site before demanding that his internet service provider take it down.

Judge Johnnie B. Rawlinson said the MPAA was entitled to believe the site,, was making movies available to its members based on language contained on the site’s home page.

The page included the phrases “Join to download full length movies online now! new movies every month”; “Full Length Downloadable Movies”; and “NOW DOWNLOADABLE.” It also contained images from films produced by MPAA members.

‘Notice and Takedown’

After learning of the site, the MPAA followed the “notice and takedown” procedures prescribed by Sec. 512(c)(3)(A), advising Rossi and his service provider of their infringement claim. The service informed Rossi that his site would be shut down.

Rossi located a new host and then sued the MPAA in federal court for tortious interference with contractual relations, tortious interference with prospective economic advantage, libel and defamation, and intentional infliction of emotional distress. A magistrate judge in the District of Hawaii dismissed the claims.

That ruling was correct, Rawlinson said yesterday.

The MPAA followed the procedures prescribed by the act and met the requirement under Sec. 512(c)(3)(A)(v) that its notice include 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,” the appellate jurist said.

She added that the MPAA was not required to conduct a reasonable investigation before making that assertion.

“Rossi’s contention notwithstanding, interpretive case law and the statutory structure of [Sec.] 512(c) support the conclusion that the ‘good faith belief’ requirement in [Sec.] 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard,” she declared.

‘Distinct’ Standards

Citing cases interpreting the Fair Labor Standards Act and other federal legislation, Rawlinson said an objective reasonableness standard “is distinct from the subjective good faith standard, and that Congress understands this distinction.”

She continued:

“When enacting the DMCA, Congress could have easily incorporated an objective standard of reasonableness. The fact that it did not do so indicates an intent to adhere to the subjective standard traditionally associated with a good faith requirement.”

The judge pointed out that Sec. 512(f) creates a cause of action for improper infringement notifications, but imposes liability only if the copyright owner’s notification is a knowing misrepresentation. Interpreting Sec. 512(c) to include an objective good faith standard would be inconsistent with that scheme, she said.

The phrases included on the Web site “led the MPAA employee [who reviewed it] to conclude in good faith that motion pictures owned by MPAA members were available for immediate downloading from the website,” Rawlinson commented, adding:

“The unequivocal language used by Rossi not only suggests that conclusion, but virtually compels it.”

Since the MPAA’s actions were proper under the DMCA, they could not as a matter of law give rise to tort liability, the judge explained.

“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,” she wrote. “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.”

Hawaii First Amendment litigator James H. Fosbinder, who represented Rossi, said a request for rehearing is likely. If that is denied, he said, he will probably ask the Ninth Circuit to rehear the case en banc or seek review by the U.S. Supreme Court.

Fosbinder said the Web site never had the capacity to provide movie downloads and characterized the statements cited by the court as “hyperbole.”

He criticized the panel for failing to “even mention” the First Amendment and argued that if a similar standard were applied to print media, it would authorize a copyright owner to “shut down the New York Times on a mere suspicion.”

The “good faith” standard has been held, under Rule 11 of the Federal Rules of Civil Procedure, under federal securities laws, and in other contexts, to include an obligation to make a reasonable investigation into the truth of an allegation before making it, Fosbinder said.

The MPAA should have purchased a membership and determined whether movies were in fact available for download before invoking the protections of the DMCA, the attorney said. He added that the membership price was about $3, and analogized the MPAA’s tactic to seeking suppression of a book based on its cover without buying or reading it.

The court’s interpretation of the DMCA creates “a second class of First Amendment protection for a new mode of communication,” Fosbinder said. If the interpretation is correct, then the act is unconstitutional, he declared.

Russell J. Frackman of Mitchell Silberberg & Knupp in Los Angeles represented the MPAA. Steven A. Marenberg of Irell & Manella represented amici curiae American Federation of Musicians of the United States and Canada and other content provider groups, including the Office of the Commissioner of Baseball and the Directors Guild of America.

An amicus brief was also filed in the case on behalf of the Internet Commerce Coalition, a trade association which includes AT&T, BellSouth Corporation, eBay Inc., MCI, SBC Communications Inc., Time Warner, and Verizon Communications.

Senior Judges Jerome Farris and John T. Noonan joined in the opinion authored by Rawlinson.

The case is Rossi v. Motion Picture Association of America Inc., 03-16034.


Copyright 2004, Metropolitan News Company