INTRODUCTION

Many video creators know the frustration of receiving a bogus DMCA takedown. Whether you're a YouTuber, podcaster, or small business owner (ex. on Etsy), one false claim can knock your content offline, cost you money, frustration, and damage your brand/reputation. The good news? There's a legal remedy. Under 17 U.S.C. § 512(f), you can sue if someone knowingly misrepresents that your work infringes copyright (via the “takedown notice”) or files a meritless counternotification.

But winning a 512(f) case isn't easy. Courts set a high bar for success, and only a handful of cases have actually succeeded. Here at Vondran Legal®, we have developed a practical roadmap for achieving success, including what you'll need to prove, and how to stack the odds in your favor.

STATUTORY DEFINITION

Section 17 U.S.C. § 512(f) is meant to deter false claims of infringement, and deter false counternotices by imposing liability on anyone who makes meritless claims.

This section creates liability for “any person who knowingly materially misrepresents… that material or activity is infringing.”

Two prongs Test – A defendant must either:

• Knowingly misrepresenting infringement in a takedown notice.

• Knowingly misrepresenting wrongful removal or disabling (e.g., in a counternotice).

ELEMENTS TO PROVE TO SUPPORT A 17 USC 512(f) CLAIM

In the Ninth Circuit, a plaintiff asserting a §512(f) claim in regard to a takedown notice must generally prove five (5) things to prevail:

1) Material Misrepresentation: The takedown notice contained a false statement that directly caused the removal or disabling of the content. (for example, a person files a takedown notice fully aware that the other party has fair use rights)

2) Knowledge: The person filing a takedown knew their representation was false or acted with willful blindness to the truth.

3) Bad Faith: The takedown was submitted recklessly, for improper motives, or without a fair-use or authorization review. (this is the reckless “head in the sand” approach, or the bull in a China shop approach)

4) Causation: The Plaintiff must show that the online service provider relied on the misrepresentation and removed or disabled the content as a result. This is typically obvious.

5) Damages: The false notice must have caused actual, measurable harm such as lost revenue, reputational injury, or legal expenses.

Let's take an in-depth look at these factors:

MATERIAL MISREPRESENTATION

The DMCA notice has to contain a material false statement. It cannot just be a typo or a minor mistake. It must falsely claim that the content at issue is infringing in a way that triggered the takedown.

ATTORNEY STEVE® TIP: How to PROVE it:

• Demonstrate that your content was clearly NOT infringing, or that it was clearly protected by fair use (think 4-factor test), public domain content was used, you had a license and they knew it, as examples.
  
• Point to the specific false statement made in the takedown (e.g., “Plaintiff owns exclusive rights to X song,” when in fact they do not). Show you have a license to use the Work at issue.
  
• You should compile the evidence needed to support your claim, such as seeking an expert legal copyright analysis, reviewing proof of licenses, showing documentation and screenshots evidencing use of public domain materials, or creating a fair use analysis of all four factors showing it was clear the use was transformative, a parody, clearly commentary, and not a market substitute, for example.

KNOWLEDGE

This is perhaps the trickiest and hardest element to prove. The law doesn't punish honest mistakes. To prevail under 17 USC 512(f), you have to show the alleged copyright holder knew their claim was false or turned a blind eye to the truth (called reckless disregard). Courts call this the subjective standard. This often looks to strong circumstantial evidence of bad faith. This depends on the unique facts of the case.

Useful Authorities:

• Rossi v. MPAA: The MPAA sent a takedown notice after the defendant advertised a website claiming to offer downloadable movies, though no infringing content was actually available. The Ninth Circuit held there was no §512(f) liability because the MPAA had a subjective good-faith belief that infringement was occurring. Even if that belief was mistaken or unreasonable, it satisfied the DMCA's good-faith standard.
  
• Lenz v. Universal: Universal issued a DMCA takedown after a mother uploaded a 29-second home video of her toddler dancing to Prince's “Let's Go Crazy.” The employee who sent the notice admitted he did not consider fair use and simply followed an internal policy to remove any video using Prince's music. The Ninth Circuit held that fair use is “authorized by law” under §107 and must be considered before sending a takedown. Failure to do so may constitute a knowing misrepresentation under §512(f).

Helpful angles:

• Show the sender never even looked at your work (for example, it may have been an automated bot firing off DMCA takedown notices). See my blog about the Redpoints case, where a company was sued for allegedly sending false DMCA notices through automated software without human review. This supports the argument that such conduct can constitute bad faith or abusive enforcement under §512(f).

• If you are in discovery, demand emails, text messages, internal communications and policy manuals showing the company has no review process.

• Take depositions to establish there is no good faith review process, or that there is competitive retribution driving the false takedown notice.

• Demonstrate that the work was so obviously non-infringing (e.g., the video clip used involved heavy commentary, demonstrable parody, scholarly uses and other factors considered fair under 17 U.S.C. 107) that no reasonable actor could have believed otherwise.

BAD FAITH / LACK OF FAIR CONSIDERATION

One of the strongest ways to succeed in a 512(f) bad faith claim is to show a pattern of abuse by the “takedown artist” as I call them. Courts don't like to see copyright law being weaponized by bad actors.

Signs of bad faith may include:

• Mass automated takedowns with no human review.

• Ignoring obvious defenses like fair use, public domain content or creative commons licensing.

• Selective targeting (show the takedown artist is fine if you agree with them, but will issue a takedown if you criticize their work).

If you can show the takedown notice was ill-advised and reckless, or even willful and more about silencing you than protecting copyright, judges are more open to ruling in your favor. These types of takedown can also lead to California Anti-SLAPP lawsuits for improperly seeking to chill free speech on important public issues, with no legal basis.

CAUSATION

It's not enough to prove the takedown was false and in bad faith. You also need to show it caused real harm. That means, as a Plaintiff in a 512(f) bad faith claim, you need to tie the false claim made to online platforms such as YouTube, Facebook, Instagram, Etsy, Amazon, TikTok, Spotify or others into actual damages such as lost profits, brand harm, loss of monetization and other losses.

What you can use as evidence:

• Takedown confirmation emails from the platform to the Plaintiff (this may help explain the reason for the takedown).

• A documented timeline showing the timing of the takedown notice → removal → and revenue drop. You need to be prepared to prove your losses and damages.

• Proof that your content was reinstated after filing a valid counter-notice, which highlights the foolhardiness' of the original takedown.

• Proof of other damages.

→ The evidence needs to be tight and clear: “Because of this false notice, I lost X amount of dollars.”

DAMAGES

Unlike a normal copyright lawsuit, you don't get statutory damages here. The law only gives you actual damages, which is what you can prove you lost.

Types of damages that count:

• Lost ad revenue or sales during the takedown period.

• Drop in subscribers or views that hurt your brand long-term.

• Unnecessary business disruption that resulted in hours of time and money spent dealing with the false notice instead of creating content.

• Legal fees and costs tied to responding to the fake claims.

NOTE: Courts may be skeptical of vague “I lost viewer exposure” claims. You need hard numbers: facts, analytics reports showing loss of typical viewers, invoices, screenshots, attorney billing records and monetization loss records. If you can show dollar-for-dollar harm, your case gets much stronger.

KEY 512(f) CASES

Here are a few cases to consider as you embark on filing a 17 U.S.C. 512(f) bad faith claim:

• Lenz v. Universal (9th Cir. 2016): The “dancing baby” case. The court held that copyright holders must consider fair use before issuing a DMCA takedown. Failure to do so can support a 512(f) claim. In discovery, make the opponent PROVE how they consider fair use defense before they file their claims.

• Online Policy Group v. Diebold (N.D. Cal. 2004): In that case, Diebold issued DMCA takedowns to remove leaked internal emails showing flaws in its voting machines. The court found that the company knew the emails were not copyrighted material and used the DMCA process to suppress public criticism. The misuse of the DMCA was deemed a knowing misrepresentation under §512(f).

• Rossi v. MPAA (9th Cir. 2004): A key defense case. The court ruled that a subjective good-faith belief in infringement defeats a 512(f) claim, even if that belief was unreasonable. This case makes the knowledge element the hardest to prove.

• Doe v. Geller (N.D. Cal. 2008): The court clarified that 512(f) does not punish mere mistakes. To succeed, plaintiffs must show a knowing, material misrepresentation, not an honest error.

• Brignac v. Yelp (N.D. Cal. 2019): The court dismissed the claim because the plaintiff failed to prove actual damages. Without documented financial harm, a 512(f) case will fail even if the notice was questionable.

ATTORNEY'S FEES

Attorney's fees in §512(f) cases are discretionary, not automatic.

Courts apply the factors outlined in Fogerty v. Fantasy, Inc. (1994):

(1) the degree of success obtained,

(2) the frivolousness of the losing party's position,

(3) the motivation of the parties, and

(4) the objective reasonableness of the losing party's claim.

Plaintiffs can strengthen their position by showing clear evidence of bad faith, repeated DMCA abuse, and good-faith efforts to resolve the issue before filing suit.

CONCLUSION

Winning a § 512(f) claim is like climbing a VERY steep hill. You'll need to prove not just that the takedown was wrong, but that it was made in bad faith and that you suffered real damages. Look closely to see if you have the facts in your favor BEFORE you file the lawsuit. You never know what you will get in discovery, so be sure you have the evidence or are very likely to get the evidence before you file the federal court action. This is a great tool to stop the takedown or counternotice bully that file intentionally false documents to seek to cripple your channel, and in many cases, use their “victories” as content for their channel. It can get nasty online, especially between competitors, so hopefully this roadmap sheds some light on how this important statute may be useful to the content creator.