Rossi v. Motion Picture Ass'n of America

• Decision Date: 01 December 2004
• Docket Number: No. 03-16034.,03-16034.
• Citation: 391 F.3d 1000
• Parties: Michael J. ROSSI, dba Internet Movies.Com, Plaintiff-Appellant, v. MOTION PICTURE ASSOCIATION OF AMERICA INC.; et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

391 F.3d 1000

Michael J. ROSSI, dba Internet Movies.Com, Plaintiff-Appellant, v. MOTION PICTURE ASSOCIATION OF AMERICA INC.; et al., Defendants-Appellees.

No. 03-16034.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2004.

Filed December 1, 2004.

James H. Fosbinder, Fosbinder & Fosbinder, A Law Corporation, Kahului, Hawaii, for the plaintiff-appellant.

Russell J. Frackman and Elena Segal, Mitchell Silberberg & Knupp, LLP, Los Angeles, California, and Paul Maki, a Law Corporation, Honolulu, Hawaii, for the defendant-appellee.

Steven A. Marenberg, Irell & Manella, LLP, Los Angeles, California, for amici curiae American Federation of Musicians of the United States and Canada, et al.

James J. Halpert, Piper Rudnick, LLP, Washington, D.C., for amici curiae NetCoalition and Internet Commerce Coalition.

Appeal from the United States District Court for the District of Hawaii; Barry M. Kurren, Magistrate Judge, Presiding.¹ D.C. No. CV-02-00239-BMK.

Before: FARRIS, NOONAN, and RAWLINSON, Circuit Judges.

RAWLINSON, Circuit Judge:

We agree that no material issue of fact was raised regarding the Motion Picture Association of America's (MPAA) "good faith belief" that Rossi was infringing upon copyrighted materials. Because the MPAA's actions, compliant with the notice and takedown provisions of the Digital Millennium Copyright Act of 1998 (DMCA), 17 U.S.C. § 512, constitute "justification," were privileged and were not unreasonable, we affirm the district court's summary judgment in favor of the MPAA.

I. BACKGROUND

Michael J. Rossi has owned and operated the "internetmovies.com" website since 1997. Rossi described his website as an "online magazine" that provided visitors with a directory of websites containing information about movies. Beginning January, 2001, Rossi offered memberships to visitors to his website.

The MPAA is a trade association that works to prevent unauthorized copying, transmittal, or other distribution of the movie studios' motion pictures. An MPAA member became aware of Rossi's website and notified the MPAA. A subsequent examination of Rossi's website revealed the following contents: "Join to download full length movies online now! new movies every month"; "Full Length Downloadable Movies"; and "NOW DOWNLOADABLE." These statements were followed by graphics for a number of the MPAA's copyrighted motion pictures. After viewing the website, the MPAA believed that Rossi was illegally infringing on its copyrighted materials.² The MPAA followed the "notice and takedown" procedures detailed in the DMCA³ and sent several notices to Rossi and Rossi's Internet service provider (ISP) informing them of the asserted infringement.

After receiving notice from his ISP that his website would be shut down, Rossi found a new ISP to host internetmovies.com. According to Rossi, internetmovies.com was offline for "[a]pproximately 1 second to 72 hours," and the amount of money he lost due to the website's shutdown was "unmeasureable."

Rossi filed this diversity action asserting the following claims: 1) tortious interference with contractual relations; 2) tortious interference with prospective economic advantage; 3) libel and defamation; and 4) intentional infliction of emotional distress. The MPAA filed a motion for summary judgment, which the district court granted. Rossi v. Motion Picture Ass'n of America, Inc., 2003 WL 21511750 (D.Haw.2003). The court held 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." Id. at *3. Since Rossi did not "raise a genuine issue of material fact with regard to [the MPAA's] compliance with the DMCA," the court granted the MPAA's motion for summary judgment on the tortious interference with contractual relations and the tortious interference with prospective economic advantage claims. Id. at *4. In disposing of the defamation claim, the court held that the MPAA's statements to Rossi's ISP "were a privileged publication." Id. Finally, the court granted summary judgment in favor of MPAA on the intentional infliction of emotional distress (IIED) claim. Id. at *5. The court found, as a matter of law, that the MPAA's notices to Rossi's ISP were "justified and reasonable" and therefore not outrageous. Id.

II. STANDARDS OF REVIEW

We review a district court's grant of summary judgment de novo. Leever v. Carson City, 360 F.3d 1014, 1017 (9th Cir.2004). "Viewing the evidence in the light most favorable to the non-moving party," we "must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id. (citation omitted). We review de novo the district court's interpretations of the Copyright Act. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004).

III. DISCUSSION

A. "Good Faith Belief" under § 512(c)(3)(A)(v)

Title II of the DMCA contains a number of measures designed to enlist the cooperation of Internet and other online service providers to combat ongoing copyright infringement. See 17 U.S.C. § 512. "Title II preserves strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment." H.R. Rep. 105-551, pt. 2, at 49 (1998). Title II also was intended to "balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse." Sen. Rep. No. 105-190 at 21 (1998). When a copyright owner suspects his copyright is being infringed, he must follow the notice and takedown provisions set forth in § 512(c)(3) of the DMCA, which provide in part:

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(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 copyright owner, its agent, or the law.

17 U.S.C. § 512(c) (emphasis added).

Rossi does not dispute that the MPAA complied with the notice and takedown provisions set forth in § 512(c)(3)(A)(i)-(iv). Rather, Rossi contends that the MPAA did not have sufficient information to form a "good faith belief" under § 512(c)(3)(A)(v) that Rossi was illegally infringing the MPAA's copyrights. Rossi urges us to adopt a rule that in order to have "a good faith belief" of infringement, the copyright owner is required to conduct a reasonable investigation into the allegedly offending website.

It is undisputed that MPAA did not attempt to download any movies from Rossi's website or any links to the site. Rossi contends that if MPAA had reasonably investigated the site by attempting to download movies, it would have been apparent that no movies could actually be downloaded from his website or related links. Rossi contends that if the MPAA had conducted such an investigation, it would have inevitably concluded that Rossi's website could not possibly have been providing a source for downloading movies. In short, Rossi's interpretation of the "good faith belief" requirement would impose an objective standard of review for gauging the reasonableness of the MPAA's conduct in notifying Rossi and his ISP of the allegedly infringing website.

MPAA counters that the "good faith belief" requirement is a subjective one. In support of its argument, the MPAA directs us to cases interpreting "good faith" as encompassing a subjective standard. MPAA also notes that Congress could have, but did not, expressly import a specific objective standard or reasonable investigation requirement into § 512(c)(3)(A)(v).

Rossi's contention notwithstanding, interpretive case law and the statutory structure of § 512(c) support the conclusion that the "good faith belief" requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard.⁴ Although no federal court has yet interpreted the meaning of "a good faith belief" within the context of § 512(c), courts interpreting other federal statutes have traditionally interpreted "good faith" to encompass a subjective standard. See e.g. Alvarez v. IBP, Inc., 339 F.3d 894, 910 (9th Cir.2003) ("[t]o satisfy [29 U.S.C.] § 260, a FLSA-liable employer bears the difficult burden of proving both subjective good faith and objective reasonableness") (citations omitted); see also Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992) ("The legislative history of [42 U.S.C.] § 11112(a) indicates that its reasonableness requirements were intended to create an objective standard, rather than a subjective good faith standard.") (emphasis added); Brooks v. Village of Ridgefield Park, 185 F.3d 130, 137 (3rd Cir.1999) ("The good faith requirement is a subjective one that requires that the employer have an honest intention to ascertain and follow the dictates of the [Fair Labor Standards] Act. ...