BRAVE NEW FILMS 501(c)(4) v. WEINER
Slip Copy, 2009 WL 1011712
N.D. Cal., 2009
April 15, 2009
- Facts:
o Defendant Michael Weiner is a talk show host who goes by the name of Michael Savage.
o On Oct. 29, 2007, during his television broadcast, Savage went on a racist tirade targeting Muslims.
ß He spoke in a derogatory manner concerning their faith, their holy text, and them as people in general.
o Brave New Films, then took excerpts of this tirade and posted it on YouTube
ß The video was 1’23†long
ß It was titled “Michael Savage Hates Muslimsâ€
ß It was uploaded on Jan. 18th , 2008
o On Sept. 28th, Original Talk Radio Network, defendant and Syndicator of radio broadcasts (including Savage’s show), contacted YouTube via a letter and asked them to take down 259 videos containing excerpts from the Michael Savage show. Including the video in question in this case.
o YouTube took down all of the videos and informed Brave New Films because of Original Talk Radio Network’s complaint their videos had been removed.
o Brave New Films brings this lawsuit, looking for two things:
ß A declaratory judgment that the Video does not infringe copyrights held by Original Talk Radio Network or Savage and,
ß Alleging misrepresentation in violation of the DMCA
- Procedural History:
o This case is before the court on a motion to dismiss brought by Defendant Savage.
- Outcome:
o Defendant Savages motion to dismiss is denied.
- Reasoning:
o Agency Relationship Between Savage and Original Talk Radio Network (ORTN)
ß Savage Argues that plaintiffs have not alleged any relevant acts or omissions on Savage’s behalf
ß Plaintiff’s argues that on Sept. 29th, 2008, ORTN acted with Savage’s authority to send the letter requesting the removal of the offending videos. Because of ORTN acting with Savage’s authority, they were acting as his agent.
• The Court finds that Brave New Films has plead facts sufficient to support the inference that ORTN was acting on Savage’s behalf as an agent.
o Brave New Films plead:
ß The videos contained excerpts of “The Michael Savage Showâ€
ß Savage is the owner of the copyright interests in the show
ß ORTN, in its letter to YouTube, stated that it represented the owner of the exclusive copyrights (Savage) to the material in the videos
• The Court continues on to say that Brave New Films allegations are sufficient enough to support an inference that Savage intentionally or negligently allowed YouTube to think that ORTN had the authority to act as Savage’s agent.
o Misrepresentation
ß Brave New Films alleges that defendants violated the DMCA §512(f) by misrepresenting in the letter to YouTube that the video infringed a valid copyright
ß Savage responds:
• Brave New Films has failed to allege that the Sept. letter was a notification of infringement, as required by the statute.
• That the Sept. 2008 letter is privileged
ß The Court:
• Notification of claimed infringement
o Here, Savage is basically saying that the notification letter does not meet with the requirements of the DMCA because it did not include a statement that the sender had a good faith belief that Brave New Films use of the broadcast was unauthorized
ß The Court says his argument fails for 2 reasons:
• First, in the Sept. letter, ORTN states that “under penalty of perjury that the information in the letter is accurate and that YouTube had posted the Video without authorization.â€
• Second, Savage is trying to use a “safe harbor†provision for service providers that allows them to escape liability when they do not receive “statutorily-compliant noticeâ€
o Savage provides no authority that says he is available for the protection of this “safe harbor.â€
• Litigation Privilege
o Savage is arguing that the Sept. letter was a privileged communication, and because of the privilege, it cannot be used a basis of liability.
ß The court says that because Savage has not proven that the Sept. letter was not a take down notice, they do not even have to consider this argument.
o Conclusion:
ß Savage’s motion to dismiss himself from this suit is denied.
Slip Copy, 2009 WL 1011712
N.D. Cal., 2009
April 15, 2009
- Facts:
o Defendant Michael Weiner is a talk show host who goes by the name of Michael Savage.
o On Oct. 29, 2007, during his television broadcast, Savage went on a racist tirade targeting Muslims.
ß He spoke in a derogatory manner concerning their faith, their holy text, and them as people in general.
o Brave New Films, then took excerpts of this tirade and posted it on YouTube
ß The video was 1’23†long
ß It was titled “Michael Savage Hates Muslimsâ€
ß It was uploaded on Jan. 18th , 2008
o On Sept. 28th, Original Talk Radio Network, defendant and Syndicator of radio broadcasts (including Savage’s show), contacted YouTube via a letter and asked them to take down 259 videos containing excerpts from the Michael Savage show. Including the video in question in this case.
o YouTube took down all of the videos and informed Brave New Films because of Original Talk Radio Network’s complaint their videos had been removed.
o Brave New Films brings this lawsuit, looking for two things:
ß A declaratory judgment that the Video does not infringe copyrights held by Original Talk Radio Network or Savage and,
ß Alleging misrepresentation in violation of the DMCA
- Procedural History:
o This case is before the court on a motion to dismiss brought by Defendant Savage.
- Outcome:
o Defendant Savages motion to dismiss is denied.
- Reasoning:
o Agency Relationship Between Savage and Original Talk Radio Network (ORTN)
ß Savage Argues that plaintiffs have not alleged any relevant acts or omissions on Savage’s behalf
ß Plaintiff’s argues that on Sept. 29th, 2008, ORTN acted with Savage’s authority to send the letter requesting the removal of the offending videos. Because of ORTN acting with Savage’s authority, they were acting as his agent.
• The Court finds that Brave New Films has plead facts sufficient to support the inference that ORTN was acting on Savage’s behalf as an agent.
o Brave New Films plead:
ß The videos contained excerpts of “The Michael Savage Showâ€
ß Savage is the owner of the copyright interests in the show
ß ORTN, in its letter to YouTube, stated that it represented the owner of the exclusive copyrights (Savage) to the material in the videos
• The Court continues on to say that Brave New Films allegations are sufficient enough to support an inference that Savage intentionally or negligently allowed YouTube to think that ORTN had the authority to act as Savage’s agent.
o Misrepresentation
ß Brave New Films alleges that defendants violated the DMCA §512(f) by misrepresenting in the letter to YouTube that the video infringed a valid copyright
ß Savage responds:
• Brave New Films has failed to allege that the Sept. letter was a notification of infringement, as required by the statute.
• That the Sept. 2008 letter is privileged
ß The Court:
• Notification of claimed infringement
o Here, Savage is basically saying that the notification letter does not meet with the requirements of the DMCA because it did not include a statement that the sender had a good faith belief that Brave New Films use of the broadcast was unauthorized
ß The Court says his argument fails for 2 reasons:
• First, in the Sept. letter, ORTN states that “under penalty of perjury that the information in the letter is accurate and that YouTube had posted the Video without authorization.â€
• Second, Savage is trying to use a “safe harbor†provision for service providers that allows them to escape liability when they do not receive “statutorily-compliant noticeâ€
o Savage provides no authority that says he is available for the protection of this “safe harbor.â€
• Litigation Privilege
o Savage is arguing that the Sept. letter was a privileged communication, and because of the privilege, it cannot be used a basis of liability.
ß The court says that because Savage has not proven that the Sept. letter was not a take down notice, they do not even have to consider this argument.
o Conclusion:
ß Savage’s motion to dismiss himself from this suit is denied.