Copyright Law - 512f - Paragraph 512(f) of the DMCA

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Paragraph 512(f) of the Digital Millennium Copyright Act

While there are many legitimate VeRO auction terminations on eBay, there are far too many that are supect and/or outright improper. This section addresses the 512(f) provisons as they might apply to a law suit brought for copyright non-infringement. Many eBay VeRO membres either don't want their products sold on eBay or fabricate infringement reasons that don't really exist in order to terminate auctions.
Section 512(f) provides that:

"Any person who knowingly materially misrepresents under [17 U.S.C. § 512] that material or activity is infringing … shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer…who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing….”
17 U.S.C. § 512(f).

In other words, “any person who sends a Notice Of Claimed Infringement ("NOCI") [to an online service provider] with knowledge that claims of infringement are false may be liable for damages.” Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1202 (N.D. Cal. 2004).
Congress enacted § 512(f) as part of the Digital Millennium Copyright Act’s (“DMCA”) so-called “safe harbor” provisions, which shield certain online service providers like eBay from monetary damages for copyright infringement, so long as they respond expeditiously to notices of infringement sent by copyright owners. See 17 U.S.C. § 512(c); Hendrickson v. eBay Inc., 165 F. Supp. 2d 1082, 1088-89 (C.D. Cal. 2001); see generally 3 Nimmer § 12B.01[C]. In order to prevent abuses of this statutory “notice-and-takedown” mechanism, Congress enacted § 512(f) “to deter knowingly false allegations to service providers in recognition that such misrepresentations are detrimental to rights holders, service providers, and Internet users.” S. Rep. 105-190 at 49 (1998); see generally 3 Nimmer § 12B.08.
Courts have already held that “eBay clearly meets the DMCA’s broad definition of online ‘service provider’” under § 512. Hendrickson v. eBay, 165 F. Supp. 2d at 1088.
The DMCA requires that service providers reasonably implement “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” 17 U.S.C. § 512(i).
In this case, the notices required by eBay from a VeRO member include every statutory element set forth in § 512(c)(3)(A). (Written communications provided to the designated agent of a service provider, signed, identifying works claimed to be infringed, identifying allegedly infringing material, including the submitter’s contact information, alleging a good faith belief that the alleged infringement is not authorized by the copyright owner or by the law, stating that the information in the notification is accurate and that the complaint is authorized by the copyright holder).

VeRO members often possess the relevant scienter under § 512(f). The law imposes liability where a party “knowingly” and “materially” misrepresents that copyright infringement has occurred. “‘Knowingly’ means that a party actually knew, or should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.” Online Policy Group v. Diebold, 337 F. Supp. 2d at 1204. “‘Material’ means that the misrepresentation affected the [service provider’s] response to a DMCA letter.” Id.
The first sale doctrine is well-established in both the statute and case law. Given the established law surrounding the first sale doctrine, a VeRO member “should have known if it acted with reasonable care or diligence” on these facts that auctions were not infringing. Online Policy Group v. Diebold, 337 F. Supp. 2d at 1204.
For more about Online Policy Group v. Diebold, click here.

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