Takedown Claims Fare No Better in Amended Complaint, Says Motion to Dismiss

The amended complaint in a copyright lawsuit alleging Universal Music Group, Sony Music and other labels fraudulently sent takedown notices to YouTube should be dismissed with prejudice for failure to state a claim on which relief can be granted, said defendants UMG, Sony Music and others Friday in a motion to dismiss (docket 8:23-cv-01942) in U.S. District Court for Middle Florida in Tampa.

DJ Erik Mishiyev sued UMG, Sony Music, Orchard Enterprises NY, YT Rocket, Ingrooves, ODMedia Network and Violent Music BV in August, saying their fraudulent takedown notices sent to YouTube led to the termination of his YouTube channel (see 2308300011). Moving defendants are UMG, Ingrooves, Sony Music and Orchard.

Mishiyev claims the YouTube channel was terminated as a result of takedown notices alleging that certain videos he posted infringed on the defendants’ copyrighted works under the Digital Millennium Copyright Act, said the motion. The statute provides a private right of action to a party that believes it has been injured as a result of knowing and material misrepresentations by the sender of the notification that the material was infringing, it noted.

Mishiyev is asserting such a private right of action but aside from “the patent deficiencies in the claim itself,” he “waited over four years after the purported notices at issue were sent and his YouTube channel was terminated before he filed this lawsuit,” said the motion.

In addition, Mishiyev’s claims are “substantively deficient” and can’t be cured by further amendment, the complaint said. His Section 512(f) claim fails because he is unable to allege any facts that would demonstrate that defendants “knowingly” and “materially” misrepresented that Mishiyev’s videos were infringing, it said. His claim for intentional interference with business relations fails because he hasn’t identified a relevant business relationship, the motion said. Also, his state law claims are preempted by federal law, it said.

Pro se plaintiff Mishiyev asserted claims under the Copyright Act, tortious interference with business relations and violation of Florida’s Unfair and Deceptive Trade Practices Act, the motion noted. Mishiyev sought to proceed in forma pauperis, which required the court to evaluate whether the action was frivolous or malicious, whether he failed to state a claim upon which relief can be granted or whether he requested monetary relief against a defendant immune from that relief, the motion said.

U.S. Magistrate Judge Amanda Arnold Sansone's Sept. 25 order found that Mishiyev’s complaint was an “'impermissible shotgun pleading' that improperly incorporated the same set of facts into every count and asserted all claims against all defendants collectively”; his intentional interference with business relations claim failed to plausibly allege a relevant business relationship; and he failed to plead jurisdiction over the foreign entity defendants. The court also said Mishiyev’s financial submission “was insufficient to support his application to proceed in forma pauperis” and recommended that the in forma pauperis motion be denied, said the motion to dismiss.

Mishiyev abandoned the in forma pauperis application and paid the court filing fee, then filed the amended complaint Oct. 26, the motion said. But the amended complaint asserts the same claims and underlying assertions as those in the initial complaint, said the motion.

In the amended complaint, the plaintiff “merely omitted the first paragraph from each count of the original complaint (that had incorporated the allegations of all preceding counts) and instead repeated the introductory assertions in each claim,” said the motion. Mishiyev “has not cured Magistrate Sansone’s holdings that the complaint failed to allege specific wrongdoing by each of the defendants and failed to allege a relevant business relationship,” it said.