DMCA’s ‘Good Faith’ Requirement Is Subjective, Court Rules

Rhett Pardon
HONOLULU — A federal appeals court ruled Wednesday that the “good faith” required under the Digital Millennium Copyright Act to demand the shutdown of an allegedly infringing website is a subjective, rather than objective, standard of conduct.

The case, decided by the 9th U.S. Circuit Court of Appeals in Honolulu, is said to be the nation’s first ruling interpreting “good faith” efforts in “notice and takedown” procedures under the DMCA.

Website operator Michael J. Rossi, who owned, sued the Motion Picture Association of America Inc. after the organization reviewed his site.

Rossi’s site included 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.

Rossi described his website as an “online magazine” that provided visitors with a directory of websites containing information about movies. Beginning in 2001, Rossi offered memberships to visitors to his website for a monthly rate of $3.

The MPAA followed the “notice and takedown” procedures under Sec. 512(c)(3)(A) of the DMCA, advising Rossi and his Internet service provider of its infringement claim.

Rossi’s ISP informed him that his site would be shut down.

He later contracted with a new ISP 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.

Rossi said that was offline for up to 72 hours, and the amount of money he lost due to the website’s shutdown was “unmeasurable.”

A U.S. District court in Hawaii dismissed his claims.

On appeal, the 9th Circuit on Wednesday agreed with the court, saying the MPAA was entitled to believe that was making movies available to its members based on language contained on the site’s home page.

Judge Johnnie B. Rawlinson, who wrote for the court, said 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.”

Rawlinson 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,” Rawlinson said.

Rawlinson also noted that federal law, 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.

“When enacting the DMCA, Congress could have easily incorporated an objective standard of reasonableness,” Rawlinson wrote. “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 language on Rossi’s website “led the MPAA employee [who examined it] to conclude in good faith that motion pictures owned by MPAA members were available for immediate downloading from the website,” Rawlinson said. “The unequivocal language used by Rossi not only suggests that conclusion, but virtually compels it.”

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

“[T]he 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,” Rawlinson 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.”

James H. Fosbinder, who represented Rossi, said he will probably ask the 9th Circuit to rehear the case en banc or seek review by the U.S. Supreme Court.

Fosbinder, a First Amendment litigator based in Honolulu, said the website never had the capacity to provide movie downloads.

An amicus brief was also filed in the case on behalf of the Internet Commerce Coalition.

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