from the 512(f)-lives! dept
We've talked in the past about how Section (f) of the DMCA Section 512 is more or less a dead letter. 512(f) is the part that is supposed to stop bogus DMCA takedowns, by saying that you can be liable for "misrepresentations" in takedowns. In practice, though, courts never seem to award anything for bogus takedowns, meaning that it's a "free" way to censor anyone you'd like. Or worse. Earlier this year, we covered how some had taken the DMCA abuse process so far that they were using bogus YouTube DMCA takedowns as part of an extortion scheme. Literally, people would contact popular YouTubers (often those who made videos about Minecraft) and threaten to DMCA their videos if they didn't receive payment.
It appears that YouTube was actually paying attention, and it has now filed a 512(f) claim against at least one of the people doing this, a guy in Omaha, Nebraska named Christopher Brady -- who probably is not having the best week. You can read the complaint here. It's pretty straightforward:
Defendant, Christopher L. Brady (“Brady), has repeatedly attempted to harass and extort money from YouTube content creators through bogus allegations of copyright infringement. This lawsuit seeks to hold him accountable for that misconduct, and for the damage he has caused to YouTube.
In 1998, Congress enacted the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”), to provide a framework for addressing claims of online copyright infringement. In general, the DMCA immunizes online service providers from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of notices from copyright holders. Through these notices, the content of which is statutorily prescribed, copyright holders are able to secure the expeditious removal of allegedly infringing materials from online services without the need to prove a claim of infringement in court. Users that receive infringement notices they contend are incorrect may file a counter notification by providing their name, address, and telephone number, and consent to service of process by the complaining party.
Congress also recognized that these “takedown notices” could be used maliciously to secure the removal of content that was not legitimately claimed to be infringing. Accordingly, it included a provision in the DMCA authorizing those aggrieved by fraudulent notices to bring an action against the sender for damages. This is such an action.
The complaint lays out Brady's behavior in fairly great detail.
Defendant Brady targeted the YouTube accounts of Kenzo and ObbyRaidz, among others, in an extortionate scheme.
In January 2019, Defendant Brady, using several falsified identities, sent YouTube multiple notices of alleged copyright infringement pursuant to the DMCA, claiming that two videos uploaded by Kenzo and two videos uploaded by ObbyRaidz supposedly infringed copyrights that he owned.
Defendant Brady’s notices of alleged infringement included the various representations required under the DMCA. Brady identified the specific locations of the videos posted by Kenzo and ObbyRaidz. He represented that he was the original creator of those videos, that he held the copyright to them, that the videos posted by Kenzo and ObbyRaidz infringed his copyrights, and that each of his notices was accurate. And he certified: “UNDER PENALTY OF PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” Brady even included links to other copies of the videos in question as “proof” that he, rather than Kenzo and ObbyRaidz, had created them.
Defendant Brady’s notices of alleged infringement were fraudulent. The videos posted by Kenzo and ObbyRaidz that Brady identified in his notices did not infringe any copyright supposedly owned by Brady. Brady knew that at the time he sent the notices. Brady also knew that did not hold the copyright to the videos he identified as his own in the notices. His certifications under penalty of perjury in the notices were knowingly false.
Defendant Brady sent the notices of alleged infringement for the improper purpose of inducing YouTube to remove the identified videos and assess unwarranted copyright strikes on the Kenzo and ObbyRaidz accounts.
The complaint goes on to note -- as we had in our article earlier this year -- the blackmail messages sent to the account creators, noting that once these were publicized, YouTube investigated the claims, removed the strikes on the user accounts and restored the videos. However, it appears that Brady decided to try again -- though this time it appears that it was as part of some larger fight, in which Brady was trying to expose a YouTube user's home address, likely for swatting (the user was swatted a few days later). It's interesting to see that part of YouTube's investigation of the matter apparently involved observing others' Twitter accounts:
A review of Defendant Brady’s and Cxlvxn’s Twitter accounts from this time period suggests they were engaged in some sort of online dispute and it appears that Brady sent the notices of alleged infringement for the improper purpose of inducing Cxlvxn to submit a counter notification, thereby exposing his home address.
Cxlvxn submitted a counter notification on July 4th, 2019. On July 10th, he announced via Twitter that he had been the victim of a swatting scheme that day. “Swatting” is the act of making a bogus call to emergency services in an attempt to bring about the dispatch of a large number of armed police officers to a particular address.
Given the timing of (i) Defendant Brady’s online dispute with Cxlvxn, (ii) Brady’s false copyright claims against Cxlvxn; (iii) Brady’s receipt of Cxlvxn’s true home address via Cxlvxn’s counter-notification; and (iv) the reported swatting incident, it appears Brady used the personal information gained through his abuse of the DMCA process to engage in swatting.
Given this, it's possible that Brady may soon be in a lot deeper shit than a 512(f) civil complaint. Law enforcement often can't go after swatters since they're hard to track down. But if YouTube has done the work for them...
Either way, it's interesting to see YouTube trying to breathe some life back into 512(f). This case seems perfectly made for just such a thing. If this case can't get a 512(f) win, then no case can. YouTube is asking for Brady to cover their legal fees (which I'm sure are substantial), as well as an injunction barring Brady from submitting more bogus DMCA notices. It's interesting to note that they're not even looking to bar him from YouTube entirely -- just from submitting bogus DMCA takedowns. It's also seeking damages for the time and effort the company had to put into dealing with his bogus DMCA takedowns. (Update: I had missed this last bit initially, but have now updated the post to reflect that).
While Brady may end up in deeper hot water over the swatting claims (should prosecutors suddenly take an interest in him over this), from a purely copyright standpoint, it would be nice to see 512(f) succeed in one case before we reach the heat death of the universe.
Filed Under: 512(f), bogus takedowns, censorship, christopher brady, copyright, dmca, extortion, swatting, takedowns
Companies: youtube
