Although DMCA 512(f) allows an award of “any damages” for wrongful removal of alleged infringing material as a result of misrepresentations to a service provider, such damages “must be proximately caused by the misrepresentation to the service provider and the service provider's reliance on the misrepresentation,” a district court ruled. The court rejected the argument that the plaintiff was required to show “substantial economic damages,” however, pointing to the “any damages” language and the deterrent purpose of the statute. The court also concluded that an award of attorney fees under DMCA 512(f) is limited to fees incurred in responding to the removal of the material prior to institution of suit, while attorney fees for bringing an action pursuant to DMCA 512(f) may be awarded pursuant to Section 505 of the Copyright Act.

Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 16899 (N.D. Cal. Feb. 26, 2010) Download PDF

Editor’s Note: This case, often referred to as the “dancing baby” case, is best known for an earlier district court ruling finding an implied duty on the part of content owners preparing a takedown notice to “consider” whether the unauthorized use of its content is protected by the fair use doctrine. The August 2008 ruling is discussed on the Proskauer New Media and Technology Law blog.