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False DMCA counter notifications can be costly

Posted by Steve Vondran | Jan 19, 2024

Vondran Legal® - DMCA YouTube Lawyer Tips - Don't fool around with fake takedown notices or counter-notifications.  Need help with a video, movie, or character infringement issue on a video platform such as Vimeo, Daily Motion, TikTok, Instagram or YouTube call us at (877) 276-5084 to discuss your case with a copyright lawyer.

Moonbug vs Babybus case


Copyright infringement disputes on YouTube and other video sharing platforms are on the rise.  Competitors can ofter go eye-to-eye and tooth-to-tooth over alleged infringement and disputes over "substantial similarity" and fair use.  Sometimes, a Plaintiff will bring a claim for Bad Faith takedown or Bad Faith counter-notifications under 17 U.S.C. 512(f).  These cases can be tough to prove as the Plaintiff must typically prove "subjective bad faith" which is not an easy standard to meet in court.  Here is one case, however, that DID SUCCEED on a bad faith counter-notification made by the Defendant, who also got hit with a HIGE copyright infringement jury verdict.

Plaintiff's allegations

Here were the Plaintiff's allegations in regard to Defendant filing a bad faith counternotice (as the jury believed as noted below)

DMCA law firm
copyright jury instructions

Defendant had its own view of what the proper jury instructions should be on the DMCA bad faith claim.

defendant position on DMCA cause of action
infringement of copyright

The Moonbug Case Jury Verdict

Here is a screenshot of a jury verdict in a copyright infringement case.  As you can see, the case went to the jury (who awarded significant damages for the infringement itself), but relevant to this blog is an award of $10,000 for Defendant making a false DMCA counter-notification.  The law is not to be played with, and if you are claiming a "mistake" or "misidentification" you ought to have some good faith basis for that, and if not, this can cost you in a court case.

bad faith DMCA counter notice

Moral of the story: DMCA, claimants who make misrepresentations concerning DMCA copyright infringement may be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer 

Contact a YouTube IP lawyer

We have helped many clients deal with copyright infringement issues including having appeared in over 500 federal court copyright infringement matters, and a good number of fair use disputes involving DMCA takedowns and counter-notifications. We also provide "fair use opinion letters" at a reasonable rate and with quick turnaround depending on our workflow.  Finally, we handle Apple and Google mobile application disputes which often center around trademark and copyright infringement, and handle photo infringement recovery and defense matters.

Call us at (877) 276-5084 or fill out our contact form for more information.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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