Addressing the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA), the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s granting of summary judgment, adopting a "subjective standard" for the good faith belief requirement. Rossi v. Motion Picture Assoc. of Am., Case No. 03-16034, D.C. No. CV-02-00239-BMK (Ninth Cir., Dec. 1, 2004) (Rawlinson J.).
The plaintiff Michael Rossi owns and operates the internet site www.internetmovies.com, which he described as an "online magazine" that provides its members with a directory of websites containing movie information. The defendant, Motion Picture Association of America (MPAA), is a trade association whose objective is to prevent unauthorized copying, transmittal or other distribution of its member movie studios’ films. On finding that Rossi’s website included the following content: "Join to download full length movies online now! New movies every month," "Full Length Downloadable Movies" and "NOW DOWNLOADABLE," and also provided graphics for several copyrighted movies, the MPAA believed that Rossi was illegally infringing its copyrighted materials and sent letters to Rossi and his internet service provider (ISP), informing them of the alleged infringement and including the "notice and takedown" procedures prescribed in the DMCA.
On receiving notice from his ISP that his website would be shut down, Rossi filed suit against the MPAA asserting tortuous interference with contractual relations, tortuous interference with prospective economic advantage, libel and defamation, as well as intentional infliction of emotional distress. The MPAA filed a motion for summary judgment on all claims. The district court granted the motion noting that the MPAA "had more than a sufficient basis to form the required good faith belief that [Rossi’s] site contained infringing content prior to asking [the ISP] to shut down the site."
On appeal, Rossi did not dispute that the MPAA complied with the DMCA notice and takedown procedures. However, Rossi contended that the MPAA did not have the "good faith belief" required by §512(c)(3)(A)(v) that he was illegally infringing the MPAA copyrights. Noting that the MPAA never attempted to download any movies from his site or related sites, Rossi argued that the "good faith belief" requirement would impose an objective standard of review for measuring the reasonableness of the MPAA’s behavior in contacting Rossi and his ISP about the allegedly infringing material. Rossi further contended that if the MPAA had tried, it would have discovered that no movies could be downloaded from his site or any of the related links. The MPAA asserted that the "good faith belief" requirement was a subjective one.
The Ninth Circuit affirmed, noting that Congress could have incorporated an objective standard of reasonableness for the requisite "good faith belief," but declined to do so, thereby indicating its intent to follow the subjective standard traditionally associated with a good faith requirement. The court also viewed the "good faith" requirement in light of the "knowing misrepresentation" provision in the DMCA, which only imposes liability upon copyright owners for knowing misrepresentations pertaining to allegedly infringing website. The court found that "[m]easuring compliance with a lesser ‘objective reasonableness’ standard would be inconsistent with Congress’s apparent intent that the statute protect potential violators from subjectively improper actions by copyright owners."
In applying the subjective standard, the court examined the material on Rossi’s site and the MPAA’s response to the discovery of that information. It found that Rossi’s representations on the site led the MPAA to reasonably conclude in good faith that MPAA movies were available on the site for downloading and that the MPAA acted within the law in contacting Rossi and his ISP.
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