Case No.: 10-CV-01941-LHKORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
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
at ¶ 43. Defendant did not, however, remove the video.
On December 27, 2009, Ms.Wendell sent Defendant another e-mail, requesting that Defendant either license the song orremove the video.
at ¶ 45. Ms Wendell sent an additional e-mail on December 28, 2009,explaining that in order to continue to use the Grandma song, Defendant would need to license therecording from the Irish Rovers and the composition from the publishers.
at ¶ 46;
December 28, 2009 E-mail from Pam Wendell to Aubrey Canning, Jr., attached as Exh. 7 to SAC
Defendant, however, still did not remove the video.Instead, Defendant replied to Plaintiff’s representative by e-mail on December 28, 2009,that Plaintiff should “contact the video site managers and get my video removed. I won’t be doingit.” SAC ¶ 49, December 28, 2009 E-mail from Aubrey Canning, Jr., to Pam Wendell, attached asExh. 6 to SAC. The next day, December 29, 2009, Plaintiff filed a “Copyright InfringementNotification” with YouTube pursuant to 17 U.S.C. § 512(c), requesting the removal of Defendant’svideo. SAC at ¶ 50. YouTube removed the video, but then reinstated it on January 4, 2010 afterDefendant filed a counter-notice with YouTube.
at ¶¶ 52-53, 58. In that counter-notice,Defendant stated that “no part of my Grandma video is a copy of any original work made by [thePlaintiff]” and that he had a “good faith belief the material was removed due to a mistake ormisidentification of the material to be removed or disabled.”
January 4, 2010 Counter-Notice,attached as Exh. 1 to SAC. After YouTube reinstated the video, Plaintiff contacted YouTubenumerous times requesting that the video be taken down. SAC ¶¶ 61-62. Those efforts wereultimately unsuccessful, as YouTube refused to remove the video unless Plaintiff filed this lawsuitagainst Defendant.
at ¶ 62.On May 3, 2010, Plaintiff filed his original complaint against YouTube, Inc. and AubreyCanning, Jr. pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512.Plaintiff voluntarily dismissed YouTube, Inc. from this litigation on June 4, 2010.
June 4,2010 “Notice of Voluntary Dismissal with Prejudice of YouTube, Inc.” [dkt. #6]. On October 18,2010, Plaintiff filed an amended complaint, adding a claim of direct copyright infringementpursuant to the Copyright Act, 17 U.S.C. § 106 based on Defendant’s unlicensed creation of thevideo synchronizing images of reindeer with audio of the Irish Rovers singing the Grandma song.
Case5:10-cv-01941-LHK Document85 Filed08/22/11 Page3 of 14