throbber
No. 16-217
`In the Supreme Court of the United States
`
`
`
`STEPHANIE LENZ, PETITIONER
`v.
`UNIVERSAL MUSIC CORP., ET AL.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
` JEFFREY B. WALL
`Acting Solicitor General
`Counsel of Record
`CHAD A. READLER
`Acting Assistant Attorney
`General
`MALCOLM L. STEWART
`Deputy Solicitor General
`BRIAN H. FLETCHER
`Assistant to the Solicitor
`General
`MARK R. FREEMAN
`SONIA K. MCNEIL
`THAIS-LYN TRAYER
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`
`
`SARANG VIJAY DAMLE
`General Counsel and
`Associate Register of
`Copyrights
`REGAN A. SMITH
`Deputy General Counsel
`CINDY P. ABRAMSON
`Assistant General Counsel
`ANDREW P. MOORE
`Barbara A. Ringer Fellow
`United States Copyright
`Office
`Washington, D.C. 20540
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`QUESTION PRESENTED
`Section 512(c) of Title 17 creates a safe harbor from
`copyright-infringement liability for website operators
`and other online service providers that store or host
`material at the direction of users. To be eligible for
`the safe harbor, a service provider that receives a
`“notification of claimed infringement” from a copy-
`right owner must remove material that allegedly in-
`fringes a copyright. 17 U.S.C. 512(c)(1)(C). A sepa-
`rate provision allows a user to recover damages from a
`copyright owner that “knowingly materially misrepre-
`sents” in such a notification that material “is infring-
`ing.” 17 U.S.C. 512(f ). The question presented is as
`follows:
`Whether a copyright owner may be held liable un-
`der Section 512(f ) for sending a notification of claimed
`infringement based on a sincere but unreasonable
`belief that the challenged material is infringing.
`
`
`(I)
`
`

`

`
`
`TABLE OF CONTENTS
`
`Page
`Statement .................................................................................. 1
`Discussion .................................................................................... 10
`A. A copyright owner is liable under Section
`512(f ) only if it actually knew that the
`challenged material was not infringing
`or was willfully blind to that fact ................................... 11
`B. The court of appeals correctly interpreted
`Section 512(f ) to require actual knowledge
`or willful blindness, but the court erroneously
`focused on the falsity of the copyright owner’s
`statement of good-faith belief rather than on
`the falsity of its allegation of infringement................... 17
`C. The court of appeals’ decision does not warrant
`this Court’s review .......................................................... 21
`Conclusion ............................................................................... 23
`
`TABLE OF AUTHORITIES
`
`
`Cases:
`Ashcroft v. ACLU, 535 U.S. 564 (2002) ............................ 3
`Brotherhood of Locomotive Firemen v. Bangor &
`Aroostook R.R., 389 U.S. 327 (1967) ................................. 22
`Bryson v. United States, 396 U.S. 64 (1969) .................. 12
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) ......................................................... 2
`Cooper v. Schlesinger, 111 U.S. 148 (1884) ......................... 15
`Corsicana Nat’l Bank v. Johnson,
`251 U.S. 68 (1919) ......................................................... 12
`Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 22
`Elonis v. United States, 135 S. Ct. 2001 (2015) ............. 14
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ..................................................12, 18
`
`(III)
`
`

`

`IV
`
`Page
`
`Cases—Continued:
`Hamilton-Brown Shoe Co. v. Wolf Bros.,
`240 U.S. 251 (1916).............................................................. 22
`Kimber v. Young, 137 F. 744 (8th Cir. 1905) ...................... 15
`Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
`Ltd., 545 U.S. 913 (2005) ............................................ 2, 3
`Rossi v. Motion Picture Ass’n of Am. Inc.,
`391 F.3d 1000 (9th Cir. 2004), cert. denied,
`544 U.S. 1018 (2005) ........................................ 7, 9, 17, 18
`Russello v. United States, 464 U.S. 16 (1983) ................ 14
`Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) ...12, 13
`Sony Corp. of Am. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) ......................................................... 2
`United States v. Gay, 967 F.2d 322 (9th Cir.),
`cert. denied, 506 U.S. 929 (1992) ....................................... 15
`United States v. Kennedy, 714 F.3d 951 (6th Cir.
`2013) ..................................................................................... 15
`United States v. Yermian, 468 U.S. 63 (1984) ............... 12
`Universal Health Servs., Inc. v. United States,
`136 S. Ct. 1989 (2016) ................................................... 16
`Yates v. Jones Nat’l Bank, 206 U.S. 158 (1907) ............. 11
`
`Statutes:
`Copyright Act of 1976, 17 U.S.C. 101 et seq. .................... 2
`17 U.S.C. 102(a) ................................................................. 2
`17 U.S.C. 106 ...................................................................... 2
`17 U.S.C. 106(4) ................................................................. 2
`17 U.S.C. 107 ................................................................ 2, 18
`17 U.S.C. 108(g)(1) .......................................................... 14
`17 U.S.C. 110(1) ............................................................... 14
`17 U.S.C. 110(2) ............................................................... 14
`17 U.S.C. 501(a) ................................................................. 2
`
`
`
`

`

`V
`
`Page
`Statutes—Continued:
`17 U.S.C. 502-505............................................................... 2
`17 U.S.C. 504(c)(2) ........................................................... 14
`17 U.S.C. 506(a)(1)(C) ..................................................... 14
`17 U.S.C. 512(c) ....................................................... 6, 8, 20
`17 U.S.C. 512(c)(1) ............................................................. 4
`17 U.S.C. 512(c)(1)(C) ....................................................... 4
`17 U.S.C. 512(c)(3) ............................................................. 5
`17 U.S.C. 512(c)(3)(A) ..................................................... 18
`17 U.S.C. 512(c)(3)(A)(ii) ................................................. 18
`17 U.S.C. 512(c)(3)(A)(iii) ................................................ 18
`17 U.S.C. 512(c)(3)(A)(v) ........................ 8, 9, 10, 18, 19, 22
`17 U.S.C. 512(f ) ....................................................... passim
`17 U.S.C. 512(f )(1) ........................................................... 18
`17 U.S.C. 512(f )(2) ........................................................... 16
`17 U.S.C. 512(g) ................................................................. 5
`17 U.S.C. 512(g)(1) ............................................................ 6
`17 U.S.C. 512(g)(2)(A) ....................................................... 5
`17 U.S.C. 512(g)(2)(B) ....................................................... 5
`17 U.S.C. 512(g)(2)(C) ....................................................... 5
`17 U.S.C. 512(g)(3)(C) ....................................................... 5
`17 U.S.C. 512(k)(1) ............................................................ 4
`17 U.S.C. 1009(d)(3) ........................................................ 14
`17 U.S.C. 1202(b)(3) ........................................................ 13
`17 U.S.C. 1203(c)(5)(A) ................................................... 13
`Digital Millennium Copyright Act,
`Pub. L. No. 105-304, 112 Stat. 2860 ............................... 1
`§ 103(a):
`112 Stat. 2872 (17 U.S.C. 1202(b)(3)) ....................... 13
`112 Stat. 2876 (17 U.S.C. 1203(c)(5)(A)) .................. 13
`§ 406(a):
`112 Stat. 2903 (28 U.S.C. 4001(a)(1)(A)) .................. 13
`
`
`
`

`

`VI
`
`Page
`Statutes—Continued:
`False Claims Act, 31 U.S.C. 3729 et seq. ............................. 13
`31 U.S.C. 3729(b)(1) ........................................................ 13
`18 U.S.C. 1001 ................................................................. 13
`28 U.S.C. 1292(b) .............................................................. 8
`28 U.S.C. 4001(a)(1)(A) ................................................... 13
`
`Miscellaneous:
`Black’s Law Dictionary (10th ed. 2014) ........................ 11
`H.R. Rep. No. 551, 105th Cong., 2d Sess. (1998) ....... 3, 14
`Model Penal Code § 2.02(b)(i) (1985).............................. 11
`S. Rep. No. 190, 105th Cong., 2d Sess. Pt. 2 (1998) ... 3, 14
`Webster’s Third New International Dictionary
`(1993) ............................................................................ 11
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`In the Supreme Court of the United States
`
`
`
`No. 16-217
`STEPHANIE LENZ, PETITIONER
`v.
`UNIVERSAL MUSIC CORP., ET AL.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`This brief is submitted in response to the Court’s
`order inviting the Acting Solicitor General to express
`the views of the United States. In the view of the
`United States, the petition for a writ of certiorari
`should be denied.
`
`STATEMENT
`1. The Digital Millennium Copyright Act (DMCA),
`Pub. L. No. 105-304, 112 Stat. 2860, created a safe
`harbor from copyright-infringement liability for online
`service providers that host or store material at the
`direction of their users. To be eligible for the safe
`harbor, a service provider must remove allegedly in-
`fringing material if it receives a specific notification,
`commonly known as a “takedown notice,” from a copy-
`right owner. This case concerns the showing required
`to recover damages under 17 U.S.C. 512(f ), which
`provides a cause of action against a copyright owner
`
`(1)
`
`

`

`2
`
`that knowingly misrepresents in a takedown notice
`that the challenged material is infringing.
`a. The Copyright Act of 1976, 17 U.S.C. 101 et seq.,
`grants copyright protection to “original works of au-
`thorship fixed in any tangible medium of expression.”
`17 U.S.C. 102(a). Copyright protection confers certain
`exclusive rights, including the rights to copy and to
`distribute the copyrighted work. 17 U.S.C. 106. Hold-
`ers of copyrights in audiovisual, musical, and certain
`other works are also granted the exclusive right “to
`perform the copyrighted work publicly.” 17 U.S.C.
`106(4).
`“Anyone who violates any of the exclusive rights of
`the copyright owner * * * is an infringer of the copy-
`right.” 17 U.S.C. 501(a). A copyright infringer may be
`subject to an injunction and held liable for damages.
`17 U.S.C. 502-505. Although the Copyright Act “does
`not expressly render anyone liable for infringement
`committed by another,” Sony Corp. of Am. v. Univer-
`sal City Studios, Inc., 464 U.S. 417, 434 (1984), third
`parties may be subject to “secondary liability on a
`theory of contributory or vicarious infringement.”
`Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
`545 U.S. 913, 930 (2005).
`The Copyright Act specifies that “the fair use of a
`copyrighted work * * * is not an infringement.”
`17 U.S.C. 107. Whether a particular use qualifies as
`fair use depends on, inter alia, “the purpose and char-
`acter of the use”; “the nature of the copyrighted
`work”; “the amount and substantiality of the portion
`used in relation to the copyrighted work as a whole”;
`and “the effect of the use upon the potential market for
`or value of the copyrighted work.” Ibid.; see Campbell
`v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-578 (1994).
`
`
`
`

`

`3
`
`b. The Internet has provided new channels for rap-
`idly and cheaply distributing text, images, sound re-
`cordings, and videos to worldwide audiences. Those
`developments have created new avenues for expres-
`sion and have allowed copyright holders to share their
`works with more readers, listeners, and viewers. Cf.
`Ashcroft v. ACLU, 535 U.S. 564, 566 (2002). But they
`have also created new opportunities for copyright
`infringement, as well as serious obstacles to enforcing
`the copyright laws against widely dispersed Internet
`users. See, e.g., Grokster, 545 U.S. at 928-931 (describ-
`ing the enforcement difficulties posed by online file-
`sharing services). In the 1990s, copyright owners in
`search of a “practical alternative,” id. at 930, began
`seeking to impose secondary liability on website opera-
`tors and other online service providers whose services
`were being used to infringe copyrights. See S. Rep.
`No. 190, 105th Cong., 2d Sess. 19 & n.20 (1998) (Senate
`Report).
`In 1998, Congress enacted the DMCA to address
`both the problem of online copyright infringement and
`the uncertainty created by the threat of secondary
`liability for online service providers. Congress sought
`to “balance[] the interests of content owners, on-line
`and other service providers, and information users in a
`way that w[ould] foster the continued development of
`electronic commerce and the growth of the Internet.”
`H.R. Rep. No. 551, 105th Cong., 2d Sess. Pt. 2, at 21
`(1998) (House Report). Rather than attempting to
`modify the general principles that govern secondary
`infringement liability, Congress sought to provide
`certainty to copyright owners and service providers by
`enacting conditional “safe harbors” from infringement
`
`
`
`

`

`4
`
`liability “for certain common activities of service pro-
`viders.” Senate Report 19.
`c. One of the DMCA’s safe harbors limits a service
`provider’s liability for copyright infringement “by
`reason of the storage at the direction of a user of ma-
`terial that resides on a system or network controlled
`or operated by or for the service provider.” 17 U.S.C.
`512(c)(1). Service providers potentially eligible for
`that safe harbor include video-sharing websites like
`YouTube, and social-media websites like Facebook and
`Instagram. See 17 U.S.C. 512(k)(1) (defining “service
`provider”).
`To claim the safe harbor, a service provider that re-
`ceives a “notification of claimed infringement” from a
`copyright owner must, inter alia, “respond[] expedi-
`tiously to remove, or disable access to * * * material
`that is claimed to be infringing.” 17 U.S.C. 512(c)(1)(C).
`A notification of claimed infringement (commonly
`known as a “takedown notice”) must contain six ele-
`ments:
`(i) A physical or electronic signature of a person
`authorized to act on behalf of the [copyright owner].
`(ii)
`Identification of
`the
`copyrighted work
`claimed to have been infringed * * * .
`(iii) Identification of the material that is claimed
`to be infringing * * * .
`(iv) Information reasonably sufficient to permit
`the service provider to contact the complaining party
`* * * .
`(v) A statement that the complaining party has a
`good faith belief that use of the material in the
`manner complained of is not authorized by the cop-
`yright owner, its agent, or the law.
`
`
`

`

`5
`
`(vi) A statement that the information in the notifi-
`cation is accurate, and under penalty of perjury,
`that the complaining party is authorized to act on
`behalf of the [copyright owner].
`17 U.S.C. 512(c)(3).1
`A service provider that removes allegedly infring-
`ing material based on a takedown notice is protected
`from any liability for the removal so long as it complies
`with the procedures set forth in Section 512(g). Under
`that provision, the service provider must “take[] rea-
`sonable steps promptly to notify” the user in question
`“that it has removed or disabled access to the material.”
`17 U.S.C. 512(g)(2)(A). The user, in turn, may send a
`“counter notification” requesting that the service pro-
`vider restore the material. 17 U.S.C. 512(g)(2)(B). Like
`a takedown notice, a counter notification must contain
`specified elements, including a “statement under pen-
`alty of perjury that the [user] has a good faith belief
`that the material was removed or disabled as a result
`of mistake or misidentification of the material to be
`removed or disabled.” 17 U.S.C. 512(g)(3)(C).
`A service provider that receives a counter notifica-
`tion must “replace[] the removed material * * * not
`less than 10, nor more than 14, business days following
`receipt of the counter notice,” unless it receives notice
`that the copyright owner has sought a court order res-
`training the user from engaging in the challenged
`conduct. 17 U.S.C. 512(g)(2)(C). So long as the ser-
`vice provider follows those procedures, it “shall not be
`
`
`1 Although a takedown notice may also be sent by another per-
`son authorized to act on the copyright holder’s behalf, we generally
`refer to the sender of the notice as the copyright holder for sim-
`plicity.
`
`
`
`

`

`6
`
`liable to any person for any claim based on [its] good
`faith disabling of access to, or removal of, material or
`activity,” whether or not “the material or activity is
`ultimately determined to be infringing.” 17 U.S.C.
`512(g)(1).
`d. Section 512(f ) provides a cause of action for us-
`ers or copyright owners who are injured by certain
`misrepresentations in takedown notices and counter
`notifications. “Any person who knowingly materially
`misrepresents under this section” that “material or
`activity is infringing” or “that material or activity was
`removed or disabled by mistake or misidentification
`* * * shall be liable for any damages, including costs
`and attorneys’ fees,” that are incurred by certain in-
`jured parties. 17 U.S.C. 512(f ). Potential plaintiffs
`under Section 512(f ) include both users (who may be
`injured by a copyright owner’s misrepresentation that
`particular material is infringing) and copyright owners
`(who may be injured by a user’s misrepresentation
`that the material was wrongly removed). See ibid.
`2. In 2007, petitioner uploaded to YouTube a 29-
`second video of her children dancing to the song Let’s
`Go Crazy by the artist Prince. Pet. App. 3a-4a. Re-
`spondents, who were authorized to enforce Prince’s
`copyrights, had assigned a legal assistant to monitor
`YouTube for videos containing Prince’s copyrighted
`works. Id. at 4a. The assistant evaluated whether
`particular videos made “significant use” of a copy-
`righted work, but he did not specifically consider fair
`use. Ibid. The assistant concluded that Let’s Go Crazy
`was the “focus” of petitioner’s video, and he caused a
`Section 512(c) takedown notice to be sent to YouTube.
`Id. at 5a. YouTube removed the video and notified
`petitioner of the removal. Ibid. Several weeks later,
`
`
`
`

`

`7
`
`after petitioner sent a counter notification, YouTube
`reinstated the video. Id. at 6a.
`3. Petitioner sued respondents for damages under
`Section 512(f ). Pet. App. 6a. Petitioner argued that,
`“given [their] procedures for reviewing videos before
`requesting that they be removed, [respondents] could
`not have formed a good faith belief that [petitioner’s]
`video did not constitute fair use.” Id. at 41a. Petitioner
`argued on that basis that the required statement of
`good-faith belief contained in respondents’ takedown
`notice was a “knowing, material misrepresentation”
`giving rise to liability under Section 512(f ). Ibid.
`The district court denied the parties’ cross-motions
`for summary judgment. Pet. App. 32a-54a. The court
`interpreted the Ninth Circuit’s decision in Rossi v.
`Motion Picture Ass’n of America Inc., 391 F.3d 1000
`(2004), cert. denied, 544 U.S. 1018 (2005), to require a
`Section 512(f ) plaintiff to show that the copyright
`owner “had some actual knowledge that its Takedown
`Notice contained a material misrepresentation.” Pet.
`App. 46a. The court held that a showing of willful
`blindness would also suffice because “[w]illful blind-
`ness is tantamount to knowledge.” Id. at 47a (citation
`omitted). The court explained that a defendant is
`willfully blind if it (1) “subjectively believe[s] that
`there is a high probability that a fact exists” and
`(2) “take[s] deliberate action to avoid learning of that
`fact.” Ibid. (citation omitted).
`The district court denied petitioner’s motion for
`summary judgment because it concluded that she had
`not presented “evidence suggesting that [respond-
`ents] subjectively believed either that there was a
`high probability that any given video might make fair
`use of a Prince composition or that her video in par-
`
`
`
`

`

`8
`
`ticular” was fair use. Pet. App. 48a. The court also
`denied respondents’ motion for summary judgment,
`concluding that they had not shown that they lacked
`such a subjective belief. Id. at 49a. The court ex-
`plained that petitioner would be free to argue at trial
`“that a reasonable actor in [respondents’] position
`would have understood that fair use was ‘self-evident,’
`and that this circumstance is evidence of * * * willful
`blindness.” Ibid. Conversely, the court stated that
`respondents could try to persuade the jury that,
`“whatever the alleged shortcomings of [their] review
`process might have been, [they] did not act with the
`subjective intent required by [Section] 512(f ).” Ibid.
`4. The district court certified its order for interloc-
`utory appeal under 28 U.S.C. 1292(b), and a divided
`panel of the court of appeals affirmed. Pet. App. 1a-
`31a.
`a. The court of appeals first held that Section
`512(c) “requires copyright holders to consider whether
`the potentially infringing material is a fair use” before
`sending a takedown notice. Pet. App. 9a. The court
`observed that a takedown notice must include a
`“statement that the complaining party has a good faith
`belief that the use of the material in the manner com-
`plained of is not authorized by the copyright owner,
`its agent, or the law.” Ibid. (quoting 17 U.S.C.
`512(c)(3)(A)(v)). The court concluded that such a
`statement must reflect consideration of fair use be-
`cause fair use is “authorized by the law.” Id. at 14a.
`The court of appeals next reviewed the district
`court’s holding that genuine issues of material fact
`precluded a grant of summary judgment to either
`party. The court framed the dispositive question as
`“whether
`[respondents] knowingly misrepresented
`
`
`
`

`

`9
`
`that [they] had formed a good faith belief the video did
`not constitute fair use.” Pet. App. 14a. The court
`rejected petitioner’s contention that respondents could
`be held liable if they “should have known” that her
`video constituted fair use. Id. at 15a. Like the district
`court, the court of appeals interpreted its decision in
`Rossi to hold that “the ‘good faith belief ’ requirement
`in [Section] 512(c)(3)(A)(v) encompasses a subjective,
`rather than objective standard,” and that a copyright
`holder “cannot be liable simply because an unknowing
`mistake is made, even if the copyright owner acted
`unreasonably in making the mistake.” Ibid. (quoting
`Rossi, 391 F.3d at 1004).
`The court of appeals also agreed with the district
`court that “the willful blindness doctrine may be used to
`determine whether a copyright holder ‘knowingly mate-
`rially misrepresented’ that it held a ‘good faith belief ’
`the offending activity was not a fair use.” Pet. App. 18a
`(brackets omitted) (quoting 17 U.S.C. 512(c)(3)(A)(v)
`and (f )). The court held that petitioner could not pro-
`ceed on a willful-blindness theory in this case, however,
`because she had failed to offer evidence that respond-
`ents believed that there was a high probability that
`her video was fair use. Id. at 18a-19a. Instead, the
`court held that petitioner could proceed to trial only
`on an actual-knowledge theory. Id. at 19a-20a.
`b. Judge Milan Smith concurred in part and dis-
`sented in part. Pet. App. 25a-31a. He agreed with the
`majority that Section 512(c)(3)(A)(v) “requires copy-
`right holders to consider whether potentially infring-
`ing material is a fair use before issuing a takedown
`notice.” Id. at 25a. He would have held, however, that
`because respondents “admittedly did not consider fair
`use” before sending their takedown notice, they “could
`
`
`
`

`

`10
`
`not have formed a good faith belief that [petitioner’s]
`video was infringing, and [their] notification to the
`contrary was a knowing material misrepresentation”
`that rendered respondents liable under Section 512(f ).
`Ibid.
`
`DISCUSSION
`Petitioner contends that a copyright owner’s sin-
`cere but unreasonable belief that the challenged mate-
`rial is infringing cannot protect it from liability under
`17 U.S.C. 512(f ) if it sends a takedown notice without
`first conducting a “fair use” inquiry. The court of
`appeals correctly held that liability under the DMCA
`requires actual knowledge or willful blindness, and its
`interlocutory decision does not conflict with any deci-
`sion of this Court or another court of appeals.
`Even if a question concerning the mental state re-
`quired for DMCA liability otherwise warranted this
`Court’s review, this case would not be an appropriate
`vehicle in which to consider it. This case has been
`litigated as a dispute about the meaning of 17 U.S.C.
`512(c)(3)(A)(v), which provides that a takedown notice
`must include a statement that the copyright owner has
`a “good faith belief ” that the challenged conduct is
`unauthorized. But Section 512(c)(3)(A)(v) does not
`define the mental state required for liability under
`Section 512(f ). That requirement appears in Section
`512(f ) itself, which states that a copyright owner is
`liable only if it “knowingly materially misrepresents
`under this section * * * that material or activity is
`infringing.” Neither the parties nor the court below
`have focused on that controlling statutory text. The
`petition for a writ of certiorari should be denied.
`
`
`
`

`

`11
`
`A. A Copyright Owner Is Liable Under Section 512(f ) On-
`ly If It Actually Knew That The Challenged Material
`Was Not Infringing Or Was Willfully Blind To That
`Fact
`Section 512(f ) imposes liability on “[a]ny person who
`knowingly materially misrepresents under this section
`* * * that material or activity is infringing.” By its
`terms, the statute reaches only a misrepresentation
`that the challenged material or activity “is infringing.”
`And because the statute is limited to misrepresenta-
`tions made “knowingly,” a copyright owner may be
`held liable only if it knew that the challenged material
`was not infringing or was willfully blind to that fact. A
`negligent or unreasonable misrepresentation of in-
`fringement is not sufficient.
`1. In general, a person acts “knowingly” if he acts
`“with awareness, deliberateness, or intention.” Web-
`ster’s Third New International Dictionary 1252
`(1993); see, e.g., Black’s Law Dictionary 1003 (10th ed.
`2014); cf. Model Penal Code § 2.02(b)(i) (1985) (“A
`person acts knowingly with respect to a material ele-
`ment of an offense * * * involv[ing] the nature of his
`conduct or the attendant circumstances” if “he is
`aware that his conduct is of that nature or that such
`circumstances exist.”). Consistent with that under-
`standing, this Court has interpreted statutes requiring
`that a person act “knowingly” to require actual
`knowledge of the relevant facts and to exclude mere
`negligence. More than a century ago, for example, the
`Court held that a statute imposing liability on bank
`officials who “knowingly” violated a prohibition on
`false statements in bank reports required “something
`more than negligence”; instead, “the violation must in
`effect be intentional.” Yates v. Jones Nat’l Bank, 206
`
`
`
`

`

`12
`
`U.S. 158, 180 (1907); accord Corsicana Nat’l Bank v.
`Johnson, 251 U.S. 68, 71 (1919).
`This Court has adhered to that understanding of the
`word “knowingly” in construing a variety of civil and
`criminal statutes. The Court has stated, for example,
`that 18 U.S.C. 1001’s prohibition on “knowingly and
`willfully” making a false statement in any matter within
`the jurisdiction of a federal agency requires proof that
`the defendant had “actual knowledge” of falsity. United
`States v. Yermian, 468 U.S. 63, 75 n.14 (1984); accord
`Bryson v. United States, 396 U.S. 64, 69-70 (1969). The
`Court has likewise indicated that a civil provision reach-
`ing “knowing” violations would not encompass “reck-
`less” or “negligent” violations. Safeco Ins. Co. of Am. v.
`Burr, 551 U.S. 47, 58-59 (2007) (Safeco).
`This Court recently clarified that a statutory
`knowledge requirement may be satisfied not only by
`proof that the defendant had actual knowledge of the
`relevant facts, but also by proof of the defendant’s
`willful blindness. See Global-Tech Appliances, Inc. v.
`SEB S.A., 563 U.S. 754, 766-770 (2011) (Global-Tech).
`A defendant is willfully blind to a fact if the defendant
`(1) “subjectively believe[s] that there is a high proba-
`bility that [the] fact exists” and (2) “take[s] deliberate
`actions to avoid learning of that fact.” Id. at 769. The
`Court explained that willful blindness is legally equiva-
`lent to actual knowledge because a defendant “who
`takes deliberate actions to avoid confirming a high
`probability of wrongdoing” is as culpable as one who
`acts with actual knowledge and indeed “can almost be
`said to have actually known the critical facts.” Ibid.;
`see id. at 766. The Court emphasized, however, that
`willful blindness has a “limited scope” and “surpasses
`recklessness and negligence.” Id. at 769.
`
`
`
`

`

`13
`
`2. The particular statutory context in which the
`word “knowingly” appears can sometimes justify a
`departure from the ordinary meaning of that term. Cf.
`Safeco, 551 U.S. at 57-58 (adhering to the “standard
`civil usage” of the term “willfully” absent a showing
`that Congress intended to depart from that term’s
`ordinary meaning). 2 Here, however, the context and
`history of Section 512(f ) reinforce the natural reading
`of its text. Thus, under Section 512(f ), a copyright
`owner “knowingly” misrepresents that the challenged
`material is infringing if he actually knows that the ma-
`terial is not infringing or is willfully blind to that fact.
`First, other provisions of the DMCA and the Copy-
`right Act use markedly different language to establish
`mental-state requirements less demanding than actual
`knowledge or willful blindness. For example, a DMCA
`provision bans the distribution of copyrighted works
`containing altered copyright-management information
`by a person “knowing, or * * * having reasonable
`grounds to know, that it will induce, enable, facilitate,
`or conceal an infringement.” 17 U.S.C. 1202(b)(3)
`(emphasis added) (added by DMCA § 103(a), 112 Stat.
`2872). Other DMCA provisions likewise distinguish
`between actual knowledge of a fact and reason to know
`of that fact. See 17 U.S.C. 1203(c)(5)(A) (“was not
`aware and had no reasonable grounds to know”) (add-
`ed by DMCA § 103(a), 112 Stat. 2876); 28 U.S.C.
`4001(a)(1)(A) (“knows or has reason to believe”) (added
`by DMCA § 406(a), 112 Stat. 2903). Various other
`provisions of the Copyright Act draw the same distinc-
`
`2 Most obviously, Congress could expressly adopt a broader def-
`inition, as it did in the False Claims Act, 31 U.S.C. 3729 et seq. See
`31 U.S.C. 3729(b)(1) (defining “knowingly” to include “reckless dis-
`regard” as well as “actual knowledge” and “deliberate ignorance”).
`
`
`

`

`14
`
`tion. 3 Congress’s use of those formulations in other
`copyright-law provisions counsels strongly against in-
`terpreting Section 512(f ) to impose liability on a copy-
`right owner that should have known, but did not know,
`that its allegation of infringement was false. See Rus-
`sello v. United States, 464 U.S. 16, 23 (1983) (“Where
`Congress includes particular language in one section of
`a statute but omits it in another section of the same
`Act, it is generally presumed that Congress acts inten-
`tionally.”) (brackets and citation omitted).
`Second, the legislative history of Section 512(f ) re-
`inforces the natural reading of the text. Both the
`House and Senate Reports explain that Section 512(f )
`was “intended to deter knowingly false allegations.”
`House Report 59; see Senate Report 49 (same). An
`assertion that material is infringing is not “knowingly
`false” unless it is made with actual knowledge of falsity
`or its legal equivalent, willful blindness.
`3. Petitioner contends (Pet. i, 2, 12,

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