Taking legal action to enforce a copyright is often an expensive proposition so, before you go down that road, you better make sure you own the copyright in question. But what if you have already initiated copyright infringement proceedings and later lose confidence in your claim of ownership – how do you extract yourself? Well, here’s one option that seems to be increasingly popular (but which we don’t recommend): just don’t show up. Recently, default judgments issued for just that reason in two cases we’ve been following.
The Disappearing Dentist
We previously discussed Dr. Stacy Makhnevich who, according to her advertisements, was “the Classical Singer Dentist of New York.” Like many dentists, Makhnevich insisted that her patients sign form contracts entitled “Mutual Agreement to Maintain Privacy.” These contracts, among other things, purported to assign to the dentist the copyright in any online reviews the patient might write in the future. The idea was that, if the patient ever wrote a negative online review about the dentist, the dentist could claim ownership of the copyright in that review and have it taken down from the internet pursuant to the Digital Millennium Copyright Act (DMCA).
In 2011, Robert Lee, one of Dr. Makhnevich’s patients, wrote a negative online review about her billing practices. Makhnevich claimed to own the copyright in the review and threatened to sue Lee for, among other things, copyright infringement. Lee filed suit in the Southern District of New York, seeking a declaration that the contract was void, that it constituted copyright misuse, and that in any event the negative review was fair use. According to the Court, Makhnevich initially attempted to evade service and then filed a motion to dismiss. After that motion was denied, she vacated her New York office, stopped returning her lawyer’s calls and disappeared, possibly moving to France. On February 27, 2015, the Court granted Lee’s motion for a default judgment and awarded him $4,766 in damages.
The Evaporating Evangelist
In August 2013, we first wrote about Oliver Hotham, a student blogger at the University of London. Hotham, identifying himself as a freelance journalist, sent a series of interview questions to “Straight Pride UK,” an anti-gay rights group. About a week later, Straight Pride UK sent back a written response which, among other things, was infected by dozens of grammatical errors, supported “what Africa and Russia is [sic] doing [because] these country [sic] have morals,” and praised Vladimir Putin for his anti-gay policies.
Hotham incorporated portions of the response into an article for his WordPress blog, and the article resulted in considerable negative publicity for Straight Pride UK. When Straight Pride UK could not convince Hotham to delete the post, the group’s press officer, Nick Steiner, issued a DMCA takedown notice to WordPress, claiming that the post infringed Straight Pride UK’s copyright. WordPress initially complied and removed the post, an action which Hotham and others (including us) questioned.
However, WordPress shortly thereafter stepped up to the plate and earned — if not a home run — at least a game-winning balk. Hotham and WordPress jointly filed suit against Steiner in the Northern District of California, alleging that the takedown notice contained a false claim of copyright ownership in violation of DMCA Section 512(f). Steiner and Straight Pride UK, faced with an expensive lawsuit five thousand miles away, not to mention an acute case of the Streisand effect, decided to sit this one out and never answered the complaint.
In October 2014, a Magistrate recommended that a default judgment issue in favor of Hotham and WordPress, and that Section 512(f) damages be awarded. The Magistrate’s opinion was apparently the first time a court substantively addressed the types of damages available under the statute. The Magistrate rejected claims for damages allegedly resulting from emotional distress, reputational harm and “chilled speech,” but did award attorneys’ fees and the administrative expenses (of both WordPress and Hotham) related to “dealing with” the DMCA takedown notice. The Court sat on the Magistrate’s recommendation for a few months while the Plaintiffs hired a private investigator in one last unsuccessful effort to track down Steiner. Then, on March 2, 2015, the Court finally adopted the Magistrate’s recommendation, issuing a default judgment to Plaintiffs in the amount of $25,084.