Proof of Infringement Not Required To Obtain Injunction Under DMCA

The plaintiff turned down a prior settlement offer due to a non-negotiable appellate waiver provision. An appeal is now pending with the U.S. Court of Appeals of the Ninth Circuit. The issue facing the Ninth Circuit is whether a requirement of a reasonable investigation should be read into the DMCA. By not requiring more stringent investigative standards, critics argue, reviewing courts have interpreted the DMCA to shift inappropriately the burden of persuasion onto the alleged infringer by providing little or no recourse in response to a copyright holder's demands.

The United States District Court for the District of Hawaii recently ruled in favor of Defendant Motion Picture Association of America (MPAA) and against InternetMovies.com in a case that underscores the broad powers afforded to copyright holders under the Digital Millennium Copyright Act (DMCA).

In Michael J. Rossi dba InternetMovies.com v. Motion Picture Association of America et al., No. CV 0200239 HG, the court ruled that the DMCA does not require a copyright holder to conduct an investigation to establish actual infringement prior to sending notice to an Internet Service Provider (ISP) demanding closure of an allegedly infringing Web site. Under the DMCA, a copyright holder need only assert a 'good faith belief' of infringement to engender an investigation of the accused.

The plaintiff, a Web site with an online directory of artists' works and Internet news magazine providing information and resources about movies on the Internet, filed suit against the MPAA last year as a result of a series of cease and desist orders that accused the plaintiff of distributing unauthorized copies of copyrighted motion pictures. MPAA's complaints ultimately resulted in the shutdown of the defendant's Web site. One of the violations noted by the MPAA was the unauthorized publication of the upcoming third installment of J.R.R. Tolkien's Lord of the Rings trilogy, 'Lord of the Rings: Return of the King,' which is due to be released in December 2003. The MPAA failed to prove that any such violations occurred.

The plaintiff turned down a prior settlement offer due to a non-negotiable appellate waiver provision. An appeal is now pending with the U.S. Court of Appeals of the Ninth Circuit. The issue facing the Ninth Circuit is whether a requirement of a reasonable investigation should be read into the DMCA. By not requiring more stringent investigative standards, critics argue, reviewing courts have interpreted the DMCA to shift inappropriately the burden of persuasion onto the alleged infringer by providing little or no recourse in response to a copyright holder's demands.