What is § 512(f)?

The bar: knowingly and materially

The standard is not strict liability and it is not negligence. Courts have generally required subjective bad faith — actual knowledge that the representation was false — rather than an objective “should have known”.

Rossi v. MPAA (9th Cir. 2004) established that the good-faith belief is measured subjectively, so a sender who genuinely but unreasonably believed infringement was occurring is generally not liable. That is a meaningful protection for honest claimants.

Online Policy Group v. Diebold (N.D. Cal. 2004) went the other way on the facts: a company that used notices to suppress embarrassing internal emails, where no reasonable copyright holder could have believed the postings were infringing, was held liable. The damages awarded were modest; the precedent was not.

Lenz, and the fair-use duty

Lenz v. Universal Music Corp. (9th Cir. 2015) is the case that changed day-to-day practice. A mother posted a short video of her child dancing to a song; the rights holder sent a notice; the court held that a copyright holder must consider whether the use is a fair use before sending a notification.

The reasoning follows from the words of the statute. Element (v) requires a good-faith belief that the use is not authorised by the owner, its agent, or the law. Fair use is authorised by law. A sender who never asked the question cannot honestly make the statement.

The duty is to consider, not to be correct. The court was explicit that a holder who forms a subjective good-faith belief after considering fair use is protected even if a court would later disagree.

What we do about it

Because we sign as agent, this provision is pointed at us as well as at our clients. That shapes the product rather than just the paperwork.

• ✓Every URL carries a written fair-use consideration before it can be approved. The software refuses the approval without one — it is not a tick box.
• ✓Every URL carries a written record of how ownership was established, with a date and a source.
• ✓Every match is re-fetched and confirmed word for word on the live page before it is even shown to a client, so nothing is filed on a stale search result.
• ✓Cases that fail the fair-use check are declined in writing, with the reason, and there is no charge.
• ✓Notices are not generated at all when a required element is missing, rather than generated with a gap.

None of that is generosity. A service that files everything gets one good quarter and then a § 512(f) claim with attorney’s fees attached.

How this shapes a responsible filing process

Section 512(f) is not usually a reason to avoid filing. It is a reason to be able to show what you checked before you did.

Confirm ownership before anything else

Who created the work, under what arrangement, and is there a written assignment if someone else made it. A notice over material you do not own is the clearest way to find out how 512(f) works.

Look at the copy yourself

Automated matching is a way of finding candidates, not a conclusion. A human should open the page and confirm the material is actually there before a notice goes out.

Consider fair use, and write down the consideration

Lenz requires it. The record of having thought about it is as important as the conclusion, because the question in litigation is what you believed at the time.

Keep what you relied on

The archive link, the screenshot, the comparison. If the claim is ever questioned, the contemporaneous file is the answer.

Do not use a notice for something it is not for

Competitive annoyance, a contract dispute, unwanted criticism. Those are real problems with other remedies, and Diebold is what happens when a copyright notice is used for them.

A process that does these five things produces notices that are both more likely to succeed and far harder to characterise as knowing misrepresentation. The two goals point the same way.

What the standard actually requires

The statutory words are “knowingly materially misrepresents”, and courts have read them narrowly. Rossi v. Motion Picture Association of America established that the test is subjective: liability attaches to actual knowledge of misrepresentation, not to a claim that merely turns out to be wrong. An honest mistake, even an unreasonable one, generally does not meet it.

That makes successful 512(f) claims uncommon. It does not make the section ornamental. Lenz v. Universal added that a copyright holder must consider fair use before sending a notice, and that failing to do so can itself support a 512(f) claim. Online Policy Group v. Diebold produced liability where notices were sent over material the sender knew was not infringing, to suppress embarrassing documents rather than to protect a work.

The pattern across the cases is that the risk is not in being wrong. It is in not having looked, or in using the notice for something other than what it is for.