U n i t e d S t a t e s D i s t r i c t C o u r t
F o r t h e N o r t h e r n D i s t r i c t o f C a l i f o r n i a
The Court recognizes that Defendant has had a limited opportunity, given the shortenedtimetable, to present its merits arguments in opposition to the issuance of injunctive relief. Defendantwill have a complete opportunity to challenge these determinations at the preliminary injunctionhearing.
The Complaint asserts claims in addition to the one under 17 U.S.C. § 512(f) for wrongfullyfiling a DMCA Notification. However, the Memorandum in Support of the Motion for a TemporaryRestraining Order only discusses likelihood of success as to the section 512 claim.3
2.First to File
It appears to the Court that the first to file rule does not bar Plaintiff’s action. Alawsuit raising a section 512(f) claim is not anticipatory to a copyright infringement action.Defendant chose to lodge a DMCA Takedown Notification rather than first (orsimultaneously) filing an infringement lawsuit. By doing so, it ran the risk that Plaintiff would sue pursuant to section 512(f) and argue that the Notification was improper.Moreover, courts within this district have already treated section 512(f) claims as viablestand-alone causes of action. See generally Lenz v. Universal Music Corp., No. C 07-3783JF, 2010 WL 702466 (N.D. Cal. Feb. 25, 2010) (discussing complaint in which plaintiff asserted “only a claim for misrepresentation pursuant to 17 U.S.C. § 512(f).”). Thus,Plaintiff’s suit, which among things asserts a section 512(f) claim, does not appear similar tothose in which courts have declined to exercise jurisdiction under the Declaratory JudgmentAct because parties were merely seeking to get out in front of an anticipated infringementaction.
Nor does the Noerr-Pennington Doctrine appear to prevent the issuance of atemporary restraining order here.
The filing of a DMCA Takedown Notification is not anoffer of settlement or necessarily a pre-suit step to the bringing of an infringement action.Sosa v. DIRECTV, Inc., 437 F.3d 923 (9th Cir. 2006).
B.Temporary Restraining Order Analysis
1.Likelihood of Success of the Merits: 17 U.S.C. § 512(f) Claim
Section 512(f) provides in part as follows:Any person who knowingly materially misrepresents underthis section . . . that material or activity is infringing . . . shall