NC, Or Not NC: Why Suing The Sons Of Confederate Veterans In N.D.Cal For Violating The DMCA Makes Sense

from the that-is-the-question dept

In Mike's piece about Greg Doucette's lawsuit against the Sons of Confederate Veterans for abusing the DMCA, he suggests that the lawsuit might not belong in the Northern District of California. I thought it worth exploring why it might very much belong here, because those reasons may apply to most other DMCA Section 512(f) jurisprudence as well.

Mike is right that there are many things to consider in deciding where to bring a legal fight. Neutral ground, especially on issues as sensitive locally as those raised by this case, can indeed be desirable because it will help allow for clear focus on the legal questions. And in this regard Northern California is a better choice than North Carolina.

But there are also legal considerations. When I first read Marc Randazza's demand letter on behalf of Doucette, I worried that he would have to file any such lawsuit in Northern California. Which is in the Ninth Circuit, which is the sole circuit that has thus far interpreted Section 512(f) of the DMCA. And which, in doing so, basically inserted its own language into the statute when it decided that a takedown notice sender only had to have a subjective "good faith belief" that the targeted material was infringing. Which represents a substantial decrease in the amount of good faith a takedown notice sender would need to have in order to be able to send their deletion demands with impunity. Which has thus severely defanged the DMCA's 512(f) provision, which was supposed to impose a deterring penalty on those who send invalid ones. And which has therefore now opened the door to a torrent of unmeritorious and abusive takedown demands, of which the Songs of Confederate Veterans demand was just one more. I therefore hoped that if any lawsuit should follow that it be filed elsewhere, where a new court could look at the statute with fresh eyes and ignore the Ninth Circuit's statutory modifications. But I wasn't sure it could be.

Forum choice isn't exactly a science. It can sometimes be the most heavily litigated aspect of a case. And there also may not always even be just one right answer. But there are some general rules to help figure out whether a forum choice is appropriate, and one of them relates to where the harm occurred. On the one hand, the Sons of Confederate Veterans were likely located in North Carolina when they dispatched their takedown notice. But that takedown notice was dispatched to a company with corporate headquarters in Northern California, and it was at that company where the decision to abide by the takedown demand and remove the material Doucette had published was made.

And where, arguably, it needed to be made. Because a DMCA takedown notice isn't really an attack against allegedly infringing content. It's an attack against the 512(c) safe harbor that Internet platforms depend on to not get obliterated by crippling copyright litigation. Greg Doucette's speech was victimized by the takedown demand, but the takedown demand itself was the Sons of Confederate Veterans actually throwing down the gauntlet at Dropbox, demanding satisfaction. Like any 512(c) takedown notice it essentially was a declaration to the platform, "Take this content down, or we may sue you for it." And all the harm that then flowed to Doucette was due to Dropbox, a company headquartered in Northern California, yielding to this threat.

We may wish that Dropbox had resisted this facially unmeritorious demand. From time to time platforms can and do resist bogus takedown demands. But by and large it is simply not possible to pick and choose which to ignore. There are simply too many takedown demands, and the stakes are too enormous if the platform should get the call wrong.

Which is why having a provision like 512(f) as part of the DMCA was so important. Because the platforms cannot effectively filter out the abusive takedown notices, we need the senders to do it themselves. We need the fear of expensive sanction needs to be plausible enough to make a takedown notice sender think twice before sending a wrongful one. Unfortunately, following the Rossi and Lenz v. Universal cases, the decision to send garbage takedown demands is now virtually costless.

But maybe it won't be here. It's quite possible that this takedown notice, which zeroed in on a textbook-example of First Amendment-protected speech exemplifying exactly why the public interest demands we protect it, failed to meet even the flimsy Ninth Circuit standard of "subjective" good faith. It's possible that adjudicating this case, in N.D. Cal and maybe eventually the Ninth Circuit at large, could turn out to provide a precedential example that helps revive at least some of the potency 512(f) was supposed to have. True, it won't be able to incite the sort of circuit split that attracts the Supreme Court review needed to resolve the issue once and for all, as it unfortunately refused to do in the Lenz case. But given the number of Internet platforms availing themselves of the 512(c) safe harbor who are located here, in this district and this circuit, this is where we need to see the courts finally start recognizing and punishing the harm on protected speech that these meritless takedown demands inflict.

Filed Under: 512(f), 512f, 9th circuit, dmca, dmca 512, greg doucette, jurisdiction, marc randazza, north carolina, northern california, venue
Companies: dropbox


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  • icon
    Stephen T. Stone (profile), 18 Dec 2019 @ 2:02pm

    I wonder: If this lawsuit goes far enough, do you think the SCV will see it as a lost cause? 🤔

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Dec 2019 @ 6:17pm

    The key issue is " Neutral ground, especially on issues as sensitive locally as those raised by this case".

    Ca with its complete and utter hatred and bigotry against all things Southern is definitely NOT neutral ground.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 18 Dec 2019 @ 7:11pm

      Re:

      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Dec 2019 @ 8:26pm

      Re:

      That argument would get you laughed out of court in Baton Rouge much less San Diego.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 19 Dec 2019 @ 7:08am

      Re:

      "Ca with its complete and utter hatred and bigotry against all things Southern is definitely NOT neutral ground."

      So basically you're afraid the people glorifying slavery won't get a fair hearing because the courts in Ca may have something against racists?

      Sounds legit. /s

      reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 19 Dec 2019 @ 9:03am

    I'm sure they will get lots of sympathetic press from headlines claiming that they are being sued in California, and likely a bunch of donations.

    I was initially confused how California was remotely related. I expected that it was somehow like Virginia, which apparently is an overlap of California and Iowa for Devin Nunes. But looking at where the notice was sent, it is actually the most logical venue for the legal action. Dropbox is the nexus for the activity -- it is the district the plaintiffs and defendants have in common, and it is where the action happened.

    reply to this | link to this | view in chronology ]

  • icon
    Scram Jet (profile), 19 Dec 2019 @ 1:18pm

    Dropbox complied with the law and restored Greg Doucette's account after 14 days when no lawsuit was brought against him. They did nothing wrong and he is seeking no damages against them. Their inclusion in the lawsuit is an obvious attempt at forum shopping.

    reply to this | link to this | view in chronology ]

    • icon
      Norahc (profile), 19 Dec 2019 @ 2:22pm

      Re:

      How is it forum shopping when the lawsuit was filed BEFORE the 14 days it took Dropbox to restore his account?

      DMCA notice was sent on Dec 2nd, and the lawsuit was filed on Dec 13 so at the time of the filing Dropbox was still a party to the case.

      reply to this | link to this | view in chronology ]

    • identicon
      Hilford, 21 Dec 2019 @ 10:35am

      Re:

      That's the literal point of the article, do you just comment your feelings before reading or are you just talking to hear yourself speak?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2019 @ 6:22am

    The "refused" link near the bottom of the article just links back to this article.

    reply to this | link to this | view in chronology ]


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