Mishiyev v. UMG Recordings, Inc.

District court denies UMG Recordings and Sony Music Entertainment’s motion to dismiss plaintiff’s claims that they issued fraudulent Digital Millennium Copyright Act takedown notices against plaintiff’s YouTube channel, finding that questions as to whether fair use applied or whether defendants believed the YouTube content was not fair use are not appropriate for resolution on motion to dismiss.

Plaintiff Erik Mishiyev, a YouTube creator known as DJ Short-E, sued UMG Recordings, Sony Music Entertainment, Orchard Enterprises NY Inc. and Ingrooves, claiming that they filed fraudulent Digital Millennium Copyright Act (DMCA) takedown notices against his YouTube content, causing his YouTube channels to be terminated. Mishiyev’s YouTube channels, which had over 250,000 subscribers, featured hour-long videos of him DJ’ing and performing songs—including works belonging to defendants. According to Mishiyev, defendants had been “targeting” and trying to “sabotage” him and his popularity by their filing of takedown notices under the DMCA, which permits copyright owners, like defendants, to submit notices to service providers, like YouTube, to remove content that allegedly infringes on their works. Mishiyev claims that his videos are protected by the fair use doctrine of the Copyright Act because they are transformative and—in addition to defendants’ copyrighted works—contain his “face, voice, logos, original works and more.” Mishiyev allegedly asserted this position to defendants in numerous communications and through his counter-notifications to the takedown notices. Nevertheless, Mishiyev’s YouTube channels were ultimately terminated, allegedly causing Mishiyev over $400,000 in damages. In August 2023, Mishiyev filed this lawsuit, claiming that defendants violated the DMCA, 17 U.S.C. § 512(f), by knowingly and materially misrepresenting in their takedown notices that Mishiyev’s YouTube videos infringed on their works, among other tort claims. After successfully dismissing an earlier pleading, defendants moved to dismiss Mishiyev’s second amended complaint.

Defendants first argued that Mishiyev’s claims are time-barred under the Copyright Act’s three-year statute of limitations, a defense that led the court to dismiss Mishiyev’s first amended complaint. While the earlier version of Mishiyev’s complaint simply alleged that YouTube’s 2018 removal of his channels caused him harm, the district court allowed him to amend his complaint to add more recent allegations of harm. In his second amended complaint, Mishiyev alleged that defendants’ purportedly fraudulent takedown notices caused YouTube to cancel his second-largest channel in October 2022 and that defendants continued to harm him “in emails found from 2022, 2023 and into 2024 by targeting [Mishiyev] and sending false claims and [DMCA] takedown notices and continu[ing] to ignore [Mishiyev’s] copyright counter-notifications.” The court found those allegations to be sufficient to bring Mishiyev’s copyright claim within the statute of limitations, rejecting defendants’ arguments that Mishiyev only alleged one takedown notice being issued in 2024 and that YouTube canceled Mishiyev’s second channel independently under its policies and not because of defendants’ actions. Thus, the court denied defendants’ motion to dismiss on statute of limitations grounds.

Defendants’ second ground for dismissal of Mishiyev’s copyright claim was equally unsuccessful. There, defendants argued that Mishiyev failed to allege that they made “knowing and material misrepresentations” in their DMCA takedown notices against Mishiyev. The court disagreed, finding first that Mishiyev specifically alleged that defendants “knowingly misrepresented copyright infringement to YouTube.” More to the heart of the dispute, the court pointed to Mishiyev’s allegation that the takedown notices were “false” because “nothing that was posted on [Mishiyev’s] YouTube channel falls outside of the ‘Fair Use’ doctrine of the copyright laws” and because defendants knew this—allegedly based on Mishiyev’s counter-notifications—at the time they submitted the takedown notices. Defendants argued that Mishiyev failed to allege facts sufficient to show that his videos qualified as fair use, and the court noted that they likely did not. Nevertheless, the court cited an unpublished panel opinion from the Eleventh Circuit that held that “failure to consider fair use before issuing a takedown notice constitutes a misrepresentation of copyright infringement under [the DMCA, 17 U.S.C.] § 512(f).” While the court noted that a copyright owner’s good faith belief that the work in question is not covered by fair use serves as a complete defense to a claim of issuing a known false DMCA takedown notice under Section 512(f), it held that a dismissal based on such affirmative defense is not appropriate at the pleading stage. Accordingly, the district court denied defendants’ motion to dismiss Mishiyev’s claim that they violated Section 512(f) of the DMCA.

Defendants also moved to dismiss Mishiyev’s second claim, for intentional infliction of emotional distress (IIED). The court held that, because Mishiyev’s IIED claim “is based on the DMCA takedown notices issued by [] Defendants,” the claim was preempted by federal copyright law. Thus, as with the other tort claims Mishiyev alleged in his first amended complaint, the district court dismissed the IIED claim with prejudice.

Last, the court considered Mishiyev’s motion for reconsideration of the court’s order granting defendants’ motion to dismiss the first amended complaint. Because the court denied defendants’ motion to dismiss Mishiyev’s copyright claim as asserted in the second amended complaint, it denied Mishiyev’s motion for reconsideration of that issue as moot. As for reconsideration of the court’s prior order dismissing Mishiyev’s other state law tort claims, the court denied the motion, finding that Mishiyev’s mere disagreement with the ruling did not meet the high standard required for the court to change its prior order.

In summary, the district court permitted Mishiyev’s claim that defendants violated the DMCA by issuing takedown notices based on known and material misrepresentations to move forward, while dismissing with prejudice Mishiyev’s preempted claim for IIED.

Summary prepared by Melanie Howard and Kyle Petersen.