The Software IP Report

Misrepresenting Infringement Under the DMCA

By Charles Bieneman

Categories: Copyright, The Software IP Report

A pro se plaintiff was unable to plead adequately that Viacom had knowingly misrepresented that the plaintiff infringed Viacom’s copyrights when Viacom sent DMCA takedown notices to various content providers.  Ouellette v. Viacom International, Inc., No. CV 10-133-M-DWM-JCL (D. Mont. March 13, 2012).  Therefore, the court granted Viacom’s motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).  In so doing, the court provided useful guidance concerning what allegations would have amounted to a sufficient pleading of a copyright owner’s bad faith in promulgating a DMCA takedown notice.


One provision of the Digital Millennium Copyright Act, 17 U.S.C. § 512, allows copyright owners to send a “takedown notice” directing online providers to remove content that the copyright owner alleges to be infringing.  The takedown notice must include a statement that the copyright owner has a good-faith belief that the complained-of material is infringing.  17 U.S.C. § 512(c)(3)(A)(v).  Further, the copyright owner is liable for “knowingly materially misrepresent[ing]” that the removed “material or activity is infringing.”  17 U.S.C. § 512(f).

Viacom sent takedown notices to various hosting providers seeking removal of allegedly infringing content that the plaintiff, Todd Ouellette, had posted.  Ouellette contended that the content consisted of non-infringing critiques of Viacom’s video programs.


As the court explained, the formulation of a good faith belief must include considering whether the alleged copyright infringement was in fact a fair use.  Here, Ouellette, relying on the fair use defense, would have to have pled that Viacom knew that he was making fair use of Viacom’s video content.  Although he pled that Viacom admitted his alleged infringement was fair use, he did not plead

any facts reflecting that his alleged fair use would have been clear to Viacom. Specifically, Ouellette does not plead any facts describing the purpose and character of his use of Viacom’s materials, the nature of the copyrighted works he used, the amount and substantiality of the copyrighted materials he used, and the effect of his use upon the potential market for, or value of, Viacom’s copyrighted works. See 17 U.S.C. § 107, supra. Thus, Ouellette’s allegations do not make it plausible that Viacom actually knew that Ouellette made fair use of its copyrighted materials because there exists no factual basis to conclude that Ouellette’s conduct clearly qualifies as fair use of those materials.

The court acknowledged that a pro se plaintiff was entitled to special consideration.  However, because Ouellette had previously been given the opportunity to correct deficiencies in his complaint, the court dismissed the complaint without leave to further amend.