No. 16-217

In the Supreme Court of the United States
STEPHANIE LENZ, PETITIONER
v.
UNIVERSAL MUSIC CORP., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SARANG VIJAY DAMLE
General Counsel and
Associate Register of
Copyrights
REGAN A. SMITH
Deputy General Counsel
CINDY P. ABRAMSON
Assistant General Counsel
ANDREW P. MOORE
Barbara A. Ringer Fellow
United States Copyright
Office
Washington, D.C. 20540

JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
MALCOLM L. STEWART
Deputy Solicitor General
BRIAN H. FLETCHER
Assistant to the Solicitor
General
MARK R. FREEMAN
SONIA K. MCNEIL
THAIS-LYN TRAYER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

Section 512(c) of Title 17 creates a safe harbor from
copyright-infringement liability for website operators
and other online service providers that store or host
material at the direction of users. To be eligible for
the safe harbor, a service provider that receives a
“notification of claimed infringement” from a copyright owner must remove material that allegedly infringes a copyright. 17 U.S.C. 512(c)(1)(C). A separate provision allows a user to recover damages from a
copyright owner that “knowingly materially misrepresents” in such a notification that material “is infringing.” 17 U.S.C. 512(f ). The question presented is as
follows:
Whether a copyright owner may be held liable under Section 512(f ) for sending a notification of claimed
infringement based on a sincere but unreasonable
belief that the challenged material is infringing.

(I)

 TABLE OF CONTENTS

Page
Statement.................................................................................. 1
Discussion .................................................................................... 10
A. A copyright owner is liable under Section
512(f) only if it actually knew that the
challenged material was not infringing
or was willfully blind to that fact ................................... 11
B. The court of appeals correctly interpreted
Section 512(f) to require actual knowledge
or willful blindness, but the court erroneously
focused on the falsity of the copyright owner’s
statement of good-faith belief rather than on
the falsity of its allegation of infringement................... 17
C. The court of appeals’ decision does not warrant
this Court’s review .......................................................... 21
Conclusion ............................................................................... 23
TABLE OF AUTHORITIES

Cases:
Ashcroft v. ACLU, 535 U.S. 564 (2002) ............................ 3
Brotherhood of Locomotive Firemen v. Bangor &
Aroostook R.R., 389 U.S. 327 (1967) ................................. 22
Bryson v. United States, 396 U.S. 64 (1969) .................. 12
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ......................................................... 2
Cooper v. Schlesinger, 111 U.S. 148 (1884) ......................... 15
Corsicana Nat’l Bank v. Johnson,
251 U.S. 68 (1919) ......................................................... 12
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 22
Elonis v. United States, 135 S. Ct. 2001 (2015) ............. 14
Global-Tech Appliances, Inc. v. SEB S.A.,
563 U.S. 754 (2011) ..................................................12, 18

(III)

 IV
Cases—Continued:

Page

Hamilton-Brown Shoe Co. v. Wolf Bros.,
240 U.S. 251 (1916).............................................................. 22
Kimber v. Young, 137 F. 744 (8th Cir. 1905) ...................... 15
Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
Ltd., 545 U.S. 913 (2005) ............................................ 2, 3
Rossi v. Motion Picture Ass’n of Am. Inc.,
391 F.3d 1000 (9th Cir. 2004), cert. denied,
544 U.S. 1018 (2005) ........................................ 7, 9, 17, 18
Russello v. United States, 464 U.S. 16 (1983) ................ 14
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007) ...12, 13
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984) ......................................................... 2
United States v. Gay, 967 F.2d 322 (9th Cir.),
cert. denied, 506 U.S. 929 (1992) ....................................... 15
United States v. Kennedy, 714 F.3d 951 (6th Cir.
2013) ..................................................................................... 15
United States v. Yermian, 468 U.S. 63 (1984) ............... 12
Universal Health Servs., Inc. v. United States,
136 S. Ct. 1989 (2016) ................................................... 16
Yates v. Jones Nat’l Bank, 206 U.S. 158 (1907) ............. 11
Statutes:
Copyright Act of 1976, 17 U.S.C. 101 et seq. .................... 2
17 U.S.C. 102(a) ................................................................. 2
17 U.S.C. 106 ...................................................................... 2
17 U.S.C. 106(4) ................................................................. 2
17 U.S.C. 107 ................................................................ 2, 18
17 U.S.C. 108(g)(1) .......................................................... 14
17 U.S.C. 110(1) ............................................................... 14
17 U.S.C. 110(2) ............................................................... 14
17 U.S.C. 501(a) ................................................................. 2

 V
Statutes—Continued:

Page

17 U.S.C. 502-505............................................................... 2
17 U.S.C. 504(c)(2) ........................................................... 14
17 U.S.C. 506(a)(1)(C) ..................................................... 14
17 U.S.C. 512(c) ....................................................... 6, 8, 20
17 U.S.C. 512(c)(1) ............................................................. 4
17 U.S.C. 512(c)(1)(C) ....................................................... 4
17 U.S.C. 512(c)(3) ............................................................. 5
17 U.S.C. 512(c)(3)(A) ..................................................... 18
17 U.S.C. 512(c)(3)(A)(ii) ................................................. 18
17 U.S.C. 512(c)(3)(A)(iii)................................................ 18
17 U.S.C. 512(c)(3)(A)(v) ........................8, 9, 10, 18, 19, 22
17 U.S.C. 512(f )....................................................... passim
17 U.S.C. 512(f)(1) ........................................................... 18
17 U.S.C. 512(f)(2) ........................................................... 16
17 U.S.C. 512(g) ................................................................. 5
17 U.S.C. 512(g)(1) ............................................................ 6
17 U.S.C. 512(g)(2)(A) ....................................................... 5
17 U.S.C. 512(g)(2)(B) ....................................................... 5
17 U.S.C. 512(g)(2)(C) ....................................................... 5
17 U.S.C. 512(g)(3)(C) ....................................................... 5
17 U.S.C. 512(k)(1) ............................................................ 4
17 U.S.C. 1009(d)(3) ........................................................ 14
17 U.S.C. 1202(b)(3) ........................................................ 13
17 U.S.C. 1203(c)(5)(A) ................................................... 13
Digital Millennium Copyright Act,
Pub. L. No. 105-304, 112 Stat. 2860 ............................... 1
§ 103(a):
112 Stat. 2872 (17 U.S.C. 1202(b)(3)) ....................... 13
112 Stat. 2876 (17 U.S.C. 1203(c)(5)(A)) .................. 13
§ 406(a):
112 Stat. 2903 (28 U.S.C. 4001(a)(1)(A)) .................. 13

 VI
Statutes—Continued:

Page

False Claims Act, 31 U.S.C. 3729 et seq. ............................. 13
31 U.S.C. 3729(b)(1) ........................................................ 13
18 U.S.C. 1001 ................................................................. 13
28 U.S.C. 1292(b) .............................................................. 8
28 U.S.C. 4001(a)(1)(A) ................................................... 13
Miscellaneous:
Black’s Law Dictionary (10th ed. 2014) ........................ 11
H.R. Rep. No. 551, 105th Cong., 2d Sess. (1998) ....... 3, 14
Model Penal Code § 2.02(b)(i) (1985).............................. 11
S. Rep. No. 190, 105th Cong., 2d Sess. Pt. 2 (1998) ... 3, 14
Webster’s Third New International Dictionary
(1993) ............................................................................ 11

 In the Supreme Court of the United States
No. 16-217
STEPHANIE LENZ, PETITIONER
v.
UNIVERSAL MUSIC CORP., ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s
order inviting the Acting Solicitor General to express
the views of the United States. In the view of the
United States, the petition for a writ of certiorari
should be denied.
STATEMENT

1. The Digital Millennium Copyright Act (DMCA),
Pub. L. No. 105-304, 112 Stat. 2860, created a safe
harbor from copyright-infringement liability for online
service providers that host or store material at the
direction of their users. To be eligible for the safe
harbor, a service provider must remove allegedly infringing material if it receives a specific notification,
commonly known as a “takedown notice,” from a copyright owner. This case concerns the showing required
to recover damages under 17 U.S.C. 512(f ), which
provides a cause of action against a copyright owner
(1)

 2
that knowingly misrepresents in a takedown notice
that the challenged material is infringing.
a. The Copyright Act of 1976, 17 U.S.C. 101 et seq.,
grants copyright protection to “original works of authorship fixed in any tangible medium of expression.”
17 U.S.C. 102(a). Copyright protection confers certain
exclusive rights, including the rights to copy and to
distribute the copyrighted work. 17 U.S.C. 106. Holders of copyrights in audiovisual, musical, and certain
other works are also granted the exclusive right “to
perform the copyrighted work publicly.” 17 U.S.C.
106(4).
“Anyone who violates any of the exclusive rights of
the copyright owner * * * is an infringer of the copyright.” 17 U.S.C. 501(a). A copyright infringer may be
subject to an injunction and held liable for damages.
17 U.S.C. 502-505. Although the Copyright Act “does
not expressly render anyone liable for infringement
committed by another,” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984), third
parties may be subject to “secondary liability on a
theory of contributory or vicarious infringement.”
Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 930 (2005).
The Copyright Act specifies that “the fair use of a
copyrighted work * * * is not an infringement.”
17 U.S.C. 107. Whether a particular use qualifies as
fair use depends on, inter alia, “the purpose and character of the use”; “the nature of the copyrighted
work”; “the amount and substantiality of the portion
used in relation to the copyrighted work as a whole”;
and “the effect of the use upon the potential market for
or value of the copyrighted work.” Ibid.; see Campbell
v. Acuff-Rose Music, Inc., 510 U.S. 569, 576-578 (1994).

 3
b. The Internet has provided new channels for rapidly and cheaply distributing text, images, sound recordings, and videos to worldwide audiences. Those
developments have created new avenues for expression and have allowed copyright holders to share their
works with more readers, listeners, and viewers. Cf.
Ashcroft v. ACLU, 535 U.S. 564, 566 (2002). But they
have also created new opportunities for copyright
infringement, as well as serious obstacles to enforcing
the copyright laws against widely dispersed Internet
users. See, e.g., Grokster, 545 U.S. at 928-931 (describing the enforcement difficulties posed by online filesharing services). In the 1990s, copyright owners in
search of a “practical alternative,” id. at 930, began
seeking to impose secondary liability on website operators and other online service providers whose services
were being used to infringe copyrights. See S. Rep.
No. 190, 105th Cong., 2d Sess. 19 & n.20 (1998) (Senate
Report).
In 1998, Congress enacted the DMCA to address
both the problem of online copyright infringement and
the uncertainty created by the threat of secondary
liability for online service providers. Congress sought
to “balance[] the interests of content owners, on-line
and other service providers, and information users in a
way that w[ould] foster the continued development of
electronic commerce and the growth of the Internet.”
H.R. Rep. No. 551, 105th Cong., 2d Sess. Pt. 2, at 21
(1998) (House Report). Rather than attempting to
modify the general principles that govern secondary
infringement liability, Congress sought to provide
certainty to copyright owners and service providers by
enacting conditional “safe harbors” from infringement

 4
liability “for certain common activities of service providers.” Senate Report 19.
c. One of the DMCA’s safe harbors limits a service
provider’s liability for copyright infringement “by
reason of the storage at the direction of a user of material that resides on a system or network controlled
or operated by or for the service provider.” 17 U.S.C.
512(c)(1). Service providers potentially eligible for
that safe harbor include video-sharing websites like
YouTube, and social-media websites like Facebook and
Instagram. See 17 U.S.C. 512(k)(1) (defining “service
provider”).
To claim the safe harbor, a service provider that receives a “notification of claimed infringement” from a
copyright owner must, inter alia, “respond[] expeditiously to remove, or disable access to * * * material
that is claimed to be infringing.” 17 U.S.C. 512(c)(1)(C).
A notification of claimed infringement (commonly
known as a “takedown notice”) must contain six elements:
(i)
A physical or electronic signature of a person
authorized to act on behalf of the [copyright owner].
(ii) Identification of the copyrighted
claimed to have been infringed * * * .

work

(iii) Identification of the material that is claimed
to be infringing * * * .
(iv) Information reasonably sufficient to permit
the service provider to contact the complaining party
* * * .
(v) A statement that the complaining party has a
good faith belief that use of the material in the
manner complained of is not authorized by the copyright owner, its agent, or the law.

 5
(vi) A statement that the information in the notification is accurate, and under penalty of perjury,
that the complaining party is authorized to act on
behalf of the [copyright owner].
17 U.S.C. 512(c)(3). 1
A service provider that removes allegedly infringing material based on a takedown notice is protected
from any liability for the removal so long as it complies
with the procedures set forth in Section 512(g). Under
that provision, the service provider must “take[] reasonable steps promptly to notify” the user in question
“that it has removed or disabled access to the material.”
17 U.S.C. 512(g)(2)(A). The user, in turn, may send a
“counter notification” requesting that the service provider restore the material. 17 U.S.C. 512(g)(2)(B). Like
a takedown notice, a counter notification must contain
specified elements, including a “statement under penalty of perjury that the [user] has a good faith belief
that the material was removed or disabled as a result
of mistake or misidentification of the material to be
removed or disabled.” 17 U.S.C. 512(g)(3)(C).
A service provider that receives a counter notification must “replace[] the removed material * * * not
less than 10, nor more than 14, business days following
receipt of the counter notice,” unless it receives notice
that the copyright owner has sought a court order restraining the user from engaging in the challenged
conduct. 17 U.S.C. 512(g)(2)(C). So long as the service provider follows those procedures, it “shall not be
Although a takedown notice may also be sent by another person authorized to act on the copyright holder’s behalf, we generally
refer to the sender of the notice as the copyright holder for simplicity.
1

 6
liable to any person for any claim based on [its] good
faith disabling of access to, or removal of, material or
activity,” whether or not “the material or activity is
ultimately determined to be infringing.” 17 U.S.C.
512(g)(1).
d. Section 512(f ) provides a cause of action for users or copyright owners who are injured by certain
misrepresentations in takedown notices and counter
notifications. “Any person who knowingly materially
misrepresents under this section” that “material or
activity is infringing” or “that material or activity was
removed or disabled by mistake or misidentification
* * * shall be liable for any damages, including costs
and attorneys’ fees,” that are incurred by certain injured parties. 17 U.S.C. 512(f ). Potential plaintiffs
under Section 512(f ) include both users (who may be
injured by a copyright owner’s misrepresentation that
particular material is infringing) and copyright owners
(who may be injured by a user’s misrepresentation
that the material was wrongly removed). See ibid.
2. In 2007, petitioner uploaded to YouTube a 29second video of her children dancing to the song Let’s
Go Crazy by the artist Prince. Pet. App. 3a-4a. Respondents, who were authorized to enforce Prince’s
copyrights, had assigned a legal assistant to monitor
YouTube for videos containing Prince’s copyrighted
works. Id. at 4a. The assistant evaluated whether
particular videos made “significant use” of a copyrighted work, but he did not specifically consider fair
use. Ibid. The assistant concluded that Let’s Go Crazy
was the “focus” of petitioner’s video, and he caused a
Section 512(c) takedown notice to be sent to YouTube.
Id. at 5a. YouTube removed the video and notified
petitioner of the removal. Ibid. Several weeks later,

 7
after petitioner sent a counter notification, YouTube
reinstated the video. Id. at 6a.
3. Petitioner sued respondents for damages under
Section 512(f ). Pet. App. 6a. Petitioner argued that,
“given [their] procedures for reviewing videos before
requesting that they be removed, [respondents] could
not have formed a good faith belief that [petitioner’s]
video did not constitute fair use.” Id. at 41a. Petitioner
argued on that basis that the required statement of
good-faith belief contained in respondents’ takedown
notice was a “knowing, material misrepresentation”
giving rise to liability under Section 512(f ). Ibid.
The district court denied the parties’ cross-motions
for summary judgment. Pet. App. 32a-54a. The court
interpreted the Ninth Circuit’s decision in Rossi v.
Motion Picture Ass’n of America Inc., 391 F.3d 1000
(2004), cert. denied, 544 U.S. 1018 (2005), to require a
Section 512(f ) plaintiff to show that the copyright
owner “had some actual knowledge that its Takedown
Notice contained a material misrepresentation.” Pet.
App. 46a. The court held that a showing of willful
blindness would also suffice because “[w]illful blindness is tantamount to knowledge.” Id. at 47a (citation
omitted). The court explained that a defendant is
willfully blind if it (1) “subjectively believe[s] that
there is a high probability that a fact exists” and
(2) “take[s] deliberate action to avoid learning of that
fact.” Ibid. (citation omitted).
The district court denied petitioner’s motion for
summary judgment because it concluded that she had
not presented “evidence suggesting that [respondents] subjectively believed either that there was a
high probability that any given video might make fair
use of a Prince composition or that her video in par-

 8
ticular” was fair use. Pet. App. 48a. The court also
denied respondents’ motion for summary judgment,
concluding that they had not shown that they lacked
such a subjective belief. Id. at 49a. The court explained that petitioner would be free to argue at trial
“that a reasonable actor in [respondents’] position
would have understood that fair use was ‘self-evident,’
and that this circumstance is evidence of * * * willful
blindness.” Ibid. Conversely, the court stated that
respondents could try to persuade the jury that,
“whatever the alleged shortcomings of [their] review
process might have been, [they] did not act with the
subjective intent required by [Section] 512(f ).” Ibid.
4. The district court certified its order for interlocutory appeal under 28 U.S.C. 1292(b), and a divided
panel of the court of appeals affirmed. Pet. App. 1a31a.
a. The court of appeals first held that Section
512(c) “requires copyright holders to consider whether
the potentially infringing material is a fair use” before
sending a takedown notice. Pet. App. 9a. The court
observed that a takedown notice must include a
“statement that the complaining party has a good faith
belief that the use of the material in the manner complained of is not authorized by the copyright owner,
its agent, or the law.” Ibid. (quoting 17 U.S.C.
512(c)(3)(A)(v)). The court concluded that such a
statement must reflect consideration of fair use because fair use is “authorized by the law.” Id. at 14a.
The court of appeals next reviewed the district
court’s holding that genuine issues of material fact
precluded a grant of summary judgment to either
party. The court framed the dispositive question as
“whether [respondents] knowingly misrepresented

 9
that [they] had formed a good faith belief the video did
not constitute fair use.” Pet. App. 14a. The court
rejected petitioner’s contention that respondents could
be held liable if they “should have known” that her
video constituted fair use. Id. at 15a. Like the district
court, the court of appeals interpreted its decision in
Rossi to hold that “the ‘good faith belief ’ requirement
in [Section] 512(c)(3)(A)(v) encompasses a subjective,
rather than objective standard,” and that a copyright
holder “cannot be liable simply because an unknowing
mistake is made, even if the copyright owner acted
unreasonably in making the mistake.” Ibid. (quoting
Rossi, 391 F.3d at 1004).
The court of appeals also agreed with the district
court that “the willful blindness doctrine may be used to
determine whether a copyright holder ‘knowingly materially misrepresented’ that it held a ‘good faith belief ’
the offending activity was not a fair use.” Pet. App. 18a
(brackets omitted) (quoting 17 U.S.C. 512(c)(3)(A)(v)
and (f)). The court held that petitioner could not proceed on a willful-blindness theory in this case, however,
because she had failed to offer evidence that respondents believed that there was a high probability that
her video was fair use. Id. at 18a-19a. Instead, the
court held that petitioner could proceed to trial only
on an actual-knowledge theory. Id. at 19a-20a.
b. Judge Milan Smith concurred in part and dissented in part. Pet. App. 25a-31a. He agreed with the
majority that Section 512(c)(3)(A)(v) “requires copyright holders to consider whether potentially infringing material is a fair use before issuing a takedown
notice.” Id. at 25a. He would have held, however, that
because respondents “admittedly did not consider fair
use” before sending their takedown notice, they “could

 10
not have formed a good faith belief that [petitioner’s]
video was infringing, and [their] notification to the
contrary was a knowing material misrepresentation”
that rendered respondents liable under Section 512(f ).
Ibid.
DISCUSSION

Petitioner contends that a copyright owner’s sincere but unreasonable belief that the challenged material is infringing cannot protect it from liability under
17 U.S.C. 512(f ) if it sends a takedown notice without
first conducting a “fair use” inquiry. The court of
appeals correctly held that liability under the DMCA
requires actual knowledge or willful blindness, and its
interlocutory decision does not conflict with any decision of this Court or another court of appeals.
Even if a question concerning the mental state required for DMCA liability otherwise warranted this
Court’s review, this case would not be an appropriate
vehicle in which to consider it. This case has been
litigated as a dispute about the meaning of 17 U.S.C.
512(c)(3)(A)(v), which provides that a takedown notice
must include a statement that the copyright owner has
a “good faith belief ” that the challenged conduct is
unauthorized. But Section 512(c)(3)(A)(v) does not
define the mental state required for liability under
Section 512(f ). That requirement appears in Section
512(f ) itself, which states that a copyright owner is
liable only if it “knowingly materially misrepresents
under this section * * * that material or activity is
infringing.” Neither the parties nor the court below
have focused on that controlling statutory text. The
petition for a writ of certiorari should be denied.

 11
A. A Copyright Owner Is Liable Under Section 512(f ) Only If It Actually Knew That The Challenged Material
Was Not Infringing Or Was Willfully Blind To That
Fact

Section 512(f) imposes liability on “[a]ny person who
knowingly materially misrepresents under this section
* * * that material or activity is infringing.” By its
terms, the statute reaches only a misrepresentation
that the challenged material or activity “is infringing.”
And because the statute is limited to misrepresentations made “knowingly,” a copyright owner may be
held liable only if it knew that the challenged material
was not infringing or was willfully blind to that fact. A
negligent or unreasonable misrepresentation of infringement is not sufficient.
1. In general, a person acts “knowingly” if he acts
“with awareness, deliberateness, or intention.” Webster’s Third New International Dictionary 1252
(1993); see, e.g., Black’s Law Dictionary 1003 (10th ed.
2014); cf. Model Penal Code § 2.02(b)(i) (1985) (“A
person acts knowingly with respect to a material element of an offense * * * involv[ing] the nature of his
conduct or the attendant circumstances” if “he is
aware that his conduct is of that nature or that such
circumstances exist.”). Consistent with that understanding, this Court has interpreted statutes requiring
that a person act “knowingly” to require actual
knowledge of the relevant facts and to exclude mere
negligence. More than a century ago, for example, the
Court held that a statute imposing liability on bank
officials who “knowingly” violated a prohibition on
false statements in bank reports required “something
more than negligence”; instead, “the violation must in
effect be intentional.” Yates v. Jones Nat’l Bank, 206

 12
U.S. 158, 180 (1907); accord Corsicana Nat’l Bank v.
Johnson, 251 U.S. 68, 71 (1919).
This Court has adhered to that understanding of the
word “knowingly” in construing a variety of civil and
criminal statutes. The Court has stated, for example,
that 18 U.S.C. 1001’s prohibition on “knowingly and
willfully” making a false statement in any matter within
the jurisdiction of a federal agency requires proof that
the defendant had “actual knowledge” of falsity. United
States v. Yermian, 468 U.S. 63, 75 n.14 (1984); accord
Bryson v. United States, 396 U.S. 64, 69-70 (1969). The
Court has likewise indicated that a civil provision reaching “knowing” violations would not encompass “reckless” or “negligent” violations. Safeco Ins. Co. of Am. v.
Burr, 551 U.S. 47, 58-59 (2007) (Safeco).
This Court recently clarified that a statutory
knowledge requirement may be satisfied not only by
proof that the defendant had actual knowledge of the
relevant facts, but also by proof of the defendant’s
willful blindness. See Global-Tech Appliances, Inc. v.
SEB S.A., 563 U.S. 754, 766-770 (2011) (Global-Tech).
A defendant is willfully blind to a fact if the defendant
(1) “subjectively believe[s] that there is a high probability that [the] fact exists” and (2) “take[s] deliberate
actions to avoid learning of that fact.” Id. at 769. The
Court explained that willful blindness is legally equivalent to actual knowledge because a defendant “who
takes deliberate actions to avoid confirming a high
probability of wrongdoing” is as culpable as one who
acts with actual knowledge and indeed “can almost be
said to have actually known the critical facts.” Ibid.;
see id. at 766. The Court emphasized, however, that
willful blindness has a “limited scope” and “surpasses
recklessness and negligence.” Id. at 769.

 13
2. The particular statutory context in which the
word “knowingly” appears can sometimes justify a
departure from the ordinary meaning of that term. Cf.
Safeco, 551 U.S. at 57-58 (adhering to the “standard
civil usage” of the term “willfully” absent a showing
that Congress intended to depart from that term’s
ordinary meaning). 2 Here, however, the context and
history of Section 512(f) reinforce the natural reading
of its text. Thus, under Section 512(f), a copyright
owner “knowingly” misrepresents that the challenged
material is infringing if he actually knows that the material is not infringing or is willfully blind to that fact.
First, other provisions of the DMCA and the Copyright Act use markedly different language to establish
mental-state requirements less demanding than actual
knowledge or willful blindness. For example, a DMCA
provision bans the distribution of copyrighted works
containing altered copyright-management information
by a person “knowing, or * * * having reasonable
grounds to know, that it will induce, enable, facilitate,
or conceal an infringement.” 17 U.S.C. 1202(b)(3)
(emphasis added) (added by DMCA § 103(a), 112 Stat.
2872). Other DMCA provisions likewise distinguish
between actual knowledge of a fact and reason to know
of that fact. See 17 U.S.C. 1203(c)(5)(A) (“was not
aware and had no reasonable grounds to know”) (added by DMCA § 103(a), 112 Stat. 2876); 28 U.S.C.
4001(a)(1)(A) (“knows or has reason to believe”) (added
by DMCA § 406(a), 112 Stat. 2903). Various other
provisions of the Copyright Act draw the same distincMost obviously, Congress could expressly adopt a broader definition, as it did in the False Claims Act, 31 U.S.C. 3729 et seq. See
31 U.S.C. 3729(b)(1) (defining “knowingly” to include “reckless disregard” as well as “actual knowledge” and “deliberate ignorance”).
2

 14
tion. 3 Congress’s use of those formulations in other
copyright-law provisions counsels strongly against interpreting Section 512(f ) to impose liability on a copyright owner that should have known, but did not know,
that its allegation of infringement was false. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where
Congress includes particular language in one section of
a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally.”) (brackets and citation omitted).
Second, the legislative history of Section 512(f ) reinforces the natural reading of the text. Both the
House and Senate Reports explain that Section 512(f )
was “intended to deter knowingly false allegations.”
House Report 59; see Senate Report 49 (same). An
assertion that material is infringing is not “knowingly
false” unless it is made with actual knowledge of falsity
or its legal equivalent, willful blindness.
3. Petitioner contends (Pet. i, 2, 12, 13, 23, 25) that
a copyright holder may be held liable under Section
512(f) if it sends a takedown notice based on an “unreasonable belief ” that the challenged material is infringing. But petitioner identifies no basis for construing
“knowingly” in Section 512(f) to mean “unreasonably”—
a standard akin to negligence. See Elonis v. United
States, 135 S. Ct. 2001, 2011 (2015) (explaining that an
objective “reasonable person” standard “is a negligence standard”). Congress could have imposed liabilSee 17 U.S.C. 108(g)(1) (“is aware or has substantial reason to
believe”); 17 U.S.C. 110(1) and (2) (“knew or had reason to believe”); 17 U.S.C. 504(c)(2) (“was not aware and had no reason to
believe”); 17 U.S.C. 506(a)(1)(C) (“knew or should have known”);
17 U.S.C. 1009(d)(3) (“was not aware and had no reason to believe”).
3

 15
ity on a copyright owner that “had reason to know”
or “should have known” that the challenged material
was not infringing, but it did not do so. Instead,
it limited liability to misrepresentations made “knowingly.”
The dissenting judge below suggested that the
term “knowingly” could be interpreted to require
something less than actual knowledge because “longsettled principles of deceit and fraudulent misrepresentation” establish that “a party need only know that
it is ignorant of the truth or falsity of its representation for its misrepresentation to be knowing.” Pet.
App. 27a (citing Cooper v. Schlesinger, 111 U.S. 148,
155 (1884)). That reasoning (which petitioner does not
appear to endorse) is incorrect. It is true that, under
the common law of fraud, a person could be held liable
for defrauding a victim through representations made
with reckless indifference as to their truth. See
Cooper, 111 U.S. at 155; see also Kimber v. Young,
137 F. 744, 748 (8th Cir. 1905) (collecting authorities).
That principle continues to govern the application of
federal fraud statutes: A person acts with intent to
defraud when he seeks to deprive another person of
property using either knowingly false representations
or representations made with reckless indifference to
their truth. See, e.g., United States v. Kennedy,
714 F.3d 951, 958 (6th Cir. 2013); United States v.
Gay, 967 F.2d 322, 326 (9th Cir.), cert. denied,
506 U.S. 929 (1992). But neither the dissenting judge
nor petitioner has identified any authority holding
that a person acts “knowingly,” within the meaning
of a statute that uses that term, simply by engaging in
reckless or negligent conduct.

 16
4. Petitioner contends (Pet. 8-26) that Section 512(f)
cannot serve as an effective deterrent against abuses of
the DMCA notice-and-takedown process unless it imposes liability on a copyright owner that sends a takedown notice based on an unreasonable belief that the
challenged material is infringing. Even if that assessment were accurate, it would not justify disregarding
Congress’s decision to limit liability to knowing misrepresentations, because “policy arguments cannot supersede the clear statutory text.” Universal Health Servs.,
Inc. v. United States, 136 S. Ct. 1989, 2002 (2016). In
any event, a damages remedy limited to knowing misrepresentations deters intentional abuses—a category
that appears to encompass some of the actual and
potential examples of abuse offered by petitioner and
her amici (e.g., Pet. 13-18). And Congress reasonably
could have concluded that copyright owners—who
include individual artists and authors as well as sophisticated entities like respondents—should not face
potential damages liability for sending a takedown
notice based on a sincere belief that the challenged
activity is infringing, even if a court finds that belief to
be objectively unreasonable.
Furthermore, Section 512(f ) liability is not limited
to copyright owners. The statute also imposes liability
on any user who “knowingly materially misrepresents”
in a counter notification that a service provider has
removed material because of a “mistake or misidentification.” 17 U.S.C. 512(f )(2). The statute thus unambiguously imposes the same mental-state requirement
in suits against both copyright owners and users.
Congress reasonably could have concluded that the
risk of damages liability for a sincere but unreasonable

 17
counter notification could deter individual users like
petitioner from seeking to restore removed material.
B. The Court Of Appeals Correctly Interpreted Section
512(f ) To Require Actual Knowledge Or Willful
Blindness, But The Court Erroneously Focused On
The Falsity Of The Copyright Owner’s Statement Of
Good-Faith Belief Rather Than On The Falsity Of Its
Allegation Of Infringement

The court of appeals correctly held that, because
Section 512(f ) reaches only knowing misrepresentations, it requires a showing of either actual knowledge
of falsity or willful blindness. The court erroneously
assumed, however, that a copyright owner may be held
liable under Section 512(f ) for knowingly misrepresenting that it had a “good faith belief ” that the challenged material was infringing. In particular, the
court’s analysis suggests that a copyright owner who
sends a takedown notice without first conducting a
“fair use” inquiry may be held liable for that omission
alone, whether or not the challenged material actually
is infringing. That approach cannot be reconciled with
the text of Section 512(f ), which imposes liability on a
copyright owner who “knowingly materially misrepresents” that the challenged “material or activity is infringing.”
1. The court of appeals correctly held that, under
the DMCA, “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the
copyright owner acted unreasonably in making the
mistake.” Pet. App. 15a (quoting Rossi v. Motion
Picture Ass’n of Am. Inc., 391 F.3d 1000, 1005 (9th
Cir. 2004), cert. denied, 544 U.S. 1018 (2005)). Instead,
the court explained, “there must be a demonstration of
some actual knowledge of misrepresentation.” Ibid.

 18
(quoting Rossi, 391 F.3d at 1005). Consistent with this
Court’s decision in Global-Tech, the court also correctly observed that “the willful blindness doctrine may be
used” as a substitute for proof of actual knowledge.
Id. at 18a; see Global-Tech, 563 U.S. at 766-770.
2. To trigger the statutory takedown procedures, a
copyright owner must send the user a written “notification of claimed infringement.” 17 U.S.C. 512(c)(3)(A).
That notification must include, inter alia, an “[i]dentification of the copyrighted work claimed to have been
infringed,” 17 U.S.C. 512(c)(3)(A)(ii), and an “[i]dentification of the material that is claimed to be infringing,” 17 U.S.C. 512(c)(3)(A)(iii). In addition, a takedown notice must include “[a] statement that the
complaining party has a good faith belief that use of
the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
17 U.S.C. 512(c)(3)(A)(v). The takedown notice thus
must include separate assertions that particular material infringes the copyright on a particular copyrighted
work, and that the copyright owner has a good-faith
belief that the user’s conduct is unauthorized.
Under the Copyright Act, “the fair use of a copyrighted work * * * is not an infringement of copyright.” 17 U.S.C. 107. If a copyright owner sends a
takedown notice, but the challenged use of the copyrighted material is subsequently determined to be
“fair use,” that determination would indicate that the
copyright owner has “materially misrepresent[ed]
* * * that [the] material or activity is infringing.”
17 U.S.C. 512(f )(1). For purposes of liability under
Section 512(f ), the crucial question then would be
whether the copyright owner made that misrepresentation “knowingly.” At least in some circumstances,

 19
the copyright owner’s failure to conduct any “fair use”
inquiry before sending its takedown notice might be
evidence that the copyright owner acted with willful
blindness (and therefore “knowingly”) with respect to
the material’s non-infringing character.
3. The court of appeals performed a different textual analysis, focusing instead on the truth or falsity of
the statement of “good faith belief ” that Section
512(c)(3)(A)(v) requires. See Pet. App. 14a-20a. The
court’s analysis logically suggests that a copyright
owner could be held liable under Section 512(f ) for
deliberately misrepresenting its subjective belief concerning the challenged material’s infringing character,
even if the court determines that the material actually
was infringing. Such a result would be inconsistent
with the text of Section 512(f ), because the copyright
owner in that scenario could not reasonably be said to
have “misrepresent[ed] * * * that [the] material or
activity is infringing.”
In particular, the court of appeals stated that respondents “face[] liability if [they] knowingly misrepresented in the takedown notification that [they] had
formed a good faith belief the video was not authorized
by the law, i.e., did not constitute fair use.” Pet. App.
16a. The court explained that the parties disputed
whether respondents had actually considered the fairuse factors before sending the takedown notice. See
ibid. The court then directed that, “[b]ecause the
DMCA requires consideration of fair use prior to sending a takedown notification, a jury must determine
whether [respondents’] actions were sufficient to form
a subjective good faith belief about the video’s fair use
or lack thereof.” Ibid. The court also stated that, “if
a copyright holder ignores or neglects [the court’s]

 20
unequivocal holding that it must consider fair use
before sending a takedown notification, it is liable for
damages under [Section] 512(f ).” Id. at 17a.
The court of appeals thus focused on the truth or
falsity of respondents’ statement of good-faith belief,
not (as Section 512(f ) directs) on whether respondents
had knowingly misrepresented petitioner’s video to be
infringing. The court also appeared to accept petitioner’s argument that respondents’ statement of goodfaith belief would be knowingly false if respondents
knew that they had not considered fair use. See Pet.
App. 16a. The court’s analysis thus suggests that, if
the jury finds on remand that respondents failed to
consider the fair-use factors before sending their
takedown notice, respondents can be held liable for
damages under Section 512(f ) on that basis alone,
whether or not the video actually constituted fair use
of the copyrighted work.
Petitioner likewise assumes (Pet. 10) that the
phrase “misrepresents under this section” in Section
512(f ) “includes a misrepresentation that one has
formed a good faith belief required under Section
512(c).” Ibid. But that is not what the statute says.
Although Section 512(c) specifies a number of representations that a takedown notice must contain, the
only representation that (if knowingly false) can give
rise to liability under Section 512(f ) is the representation that the challenged material “is infringing.” 4 If
Section 512(f )’s reference to misrepresentations made “under
this section” does not suggest otherwise. That phrase performs a
limiting function, by making clear that misrepresentations of infringement will give rise to damages liability under Section 512(f )
only if those misrepresentations are made in Section 512(c) takedown notices. The phrase does not expand liability to cover the
4

 21
petitioner’s video did not actually constitute fair use,
respondents’ statement that the video was infringing
was not a “misrepresent[ation],” whether or not respondents conducted any fair-use inquiry before sending their takedown notice.
The court of appeals’ analysis thus contains a significant legal error, and one that could give rise to unwarranted Section 512(f ) liability in a case where the
challenged material actually was infringing. This case
does not provide a suitable vehicle for correcting that
mistake, however, because the error potentially benefits petitioner and respondents have not sought review
of that aspect of the court of appeals’ decision.
C. The Court Of Appeals’ Decision Does Not Warrant
This Court’s Review

Petitioner does not contend that the court of appeals’ decision conflicts with any decision of this Court
or another court of appeals. In fact, it appears that no
other court of appeals has even discussed the showing
required to recover under Section 512(f ). And petitioner has not cited any decision, by any court, endorsing her view that a sincere but unreasonable belief can
give rise to Section 512(f ) liability. Two additional
features of this case reinforce the conclusion that further review is not warranted.
First, the decision below is interlocutory. The district court denied the parties’ cross-motions for summary judgment, and the court of appeals affirmed.
Ordinarily, the absence of a final judgment is “a fact
that of itself alone furnishe[s] sufficient ground for the
additional representations that a takedown notice is required to
contain.

 22
denial” of a petition for a writ of certiorari. HamiltonBrown Shoe Co. v. Wolf Bros., 240 U.S. 251, 258
(1916); see Brotherhood of Locomotive Firemen v.
Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967)
(per curiam). If petitioner prevails at trial, the argument she seeks to raise now will become moot. And if
she does not prevail, she can raise that argument—
along with any others she may have—in a single petition for a writ of certiorari following a final judgment.
Second, this case has been litigated on the mistaken
assumption that the standard for liability under
Section 512(f ) is governed by the meaning of the “good
faith belief ” statement required by Section
512(c)(3)(A)(v). That assumption was an unexamined
premise of the court of appeals’ decision, see pp. 17-21,
supra. It is also incorporated into the question presented and petitioner’s arguments on the merits. See
Pet. i, 10, 12. And respondents have not questioned
that premise, instead arguing primarily (Br. in Opp. 36) that the phrase “good faith belief ” denotes a subjective state of mind rather than an objective reasonableness standard.
As a result, neither of the decisions below squarely
considered the proper interpretation of the controlling
language in Section 512(f ). That failure provides sufficient reason to deny the petition because this Court is
“a court of review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). And the usual
reasons counseling against addressing questions that
were not squarely passed upon below have added
force where, as here, the parties’ filings in this Court
likewise do not focus on the controlling statutory
language.

 23
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.

SARANG VIJAY DAMLE
General Counsel and
Associate Register of
Copyrights
REGAN A. SMITH
Deputy General Counsel
CINDY P. ABRAMSON
Assistant General Counsel
ANDREW P. MOORE
Barbara A. Ringer Fellow
United States Copyright
Office

MAY 2017

JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
MALCOLM L. STEWART
Deputy Solicitor General
BRIAN H. FLETCHER
Assistant to the Solicitor
General
MARK R. FREEMAN
SONIA K. MCNEIL
THAIS-LYN TRAYER
Attorneys