Jonathan “Frauditor Troll” Huneault’s defense in a lawsuit brought against him by Christopher “Denver Metro Audits” Cordova gained a minor victory and a major defeat on Friday when Judge Virginia K. DeMarchi made her ruling on Huneault’s second attempt at a motion to dismiss the lawsuit.
The second version of Huneault’s motion to dismiss applies only to Huneault and his 14693663 Canada Inc., excluding his wife Nneka Ohiri, who Judge DeMarchi ruled was not covered by the motion to dismiss as inexplicably, Huneault’s lawyer, “Superstar” Steve Vondran, forgot to include Ohiri in both attempts at a motion to dismiss.
Please note that the motion to dismiss lives in a vacuum. The initial reply provided by Huneault’s team came before the discovery of the livestream where Huneault claims he was given perpetual non-exclusive license to use Cordova’s videos.
The narrative provided by his camp provides the previous narrative and not the same one used for Huneault’s counter claims and for his response to the amended complaint. “Superstar” Vondran would later allude to, but not provide details of the claims in his response to the Cordova’s response to the motion to dismiss.
Also note that DeMarchi explained that since this is her ruling on a motion to dismiss, it is not the final decision in the case. Where possible, she was required to give the most leeway to the plaintiff. Any claims that were dismissed were found when she could not find a way for the claim to go forward based on what was presented in the claim itself.
Huneault’s motion to dismiss challenges counts two through four of Cordova’s amended complaint as filed by attorney That Randall S. “The Unhinged Attorney” Newman, who is representing the controversial YouTuber.
Those claims are:
- (2) Misrepresentation in DMCA counter-notices, in violation of 17 U.S.C. § 512(f);
- (3) Declaration that defendants’ use of the Courthouse Fail video does not qualify as fair use under 17 U.S.C. § 107;
- (4) Unlawful circumvention of technological measures, in violation of 17 U.S.C. § 1201(a).
Two of the claims survived Huneault’s motion to dismiss, while one was dismissed completely.
We’ll start with perhaps the only positive for Huneault in the ruling:
Judge DeMarchi agreed to dismiss claim three because it sought declaratory judgment “for the sole purposes of seeking attorney fees, where it cannot [do] so due to its untimely copyright registration mandating dismissal with prejudice.”
For the claim to stand, Cordova would have had to hold a registered copyright for the video at the center of the claim, “Courthouse Fail” in order to seek declaratory judgement. While Cordova is in the process of registering the video, its inclusion in this count before registration prevented the count from standing.
DeMarchi wrote:
“Mr. Cordova concedes he does not hold a registered copyright for Courthouse Fail, see Dkt. No. 39 ¶ 45 n.6; Dkt. No. 46 at 5 n.1, and therefore he cannot assert a claim for copyright infringement against defendants as to that work. See 17 U.S.C. § 411(a); Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 301 (2019).9 It appears that Mr. Cordova attempts to avoid the registration requirement by framing his claim with respect to Courthouse Fail as a claim for declaratory relief, rather than a claim for copyright infringement. Compare Dkt. No. 39 ¶¶ 85-93 (claim for copyright infringement of Another Chad and Belmar Library) with id. ¶¶ 107-112 (claim for declaratory relief in connection with Courthouse Fail). He cites no authority that would support such a claim in the circumstances alleged in the FAC. As Mr. Cordova elsewhere observes, fair use is an affirmative defense to a claim of copyright infringement. See Dkt. No. 46 at 9. The Declaratory Judgment Act generally may not be invoked to anticipate an affirmative defense. See, e.g., Divino Grp. LLC v. Google LLC, No. 19-cv-04749-VKD, 2021 WL 51715, at *11 (N.D. Cal. Jan. 6, 2021) (“Dismissal of a declaratory relief claim intended to anticipate an affirmative defense is appropriate, particularly where, as here, the Court need not consider the affirmative defense in order to resolve defendants’ motion to dismiss plaintiffs’ other claims.”).
The Court finds that Mr. Cordova has not stated any claim for which he might be entitled to the declaratory relief sought in claim 3 with respect to the Courthouse Fail video. Accordingly, the Court grants defendants’ motion to dismiss claim 3.”
In public statements since the ruling, Attorney Newman has stated that he will attempt to refile claim three once Cordova’s registration for the copyright of the video is received.
Moving forward, DeMarchi’s ruling on claim two may prove to be the most consequential to Huneault’s defense and counter claims moving forward.
This claim originally had a “bad faith” defense by Huneault. In essence, Vondran, on behalf of Huneault, argued that Cordova “knew” that the material was presented in the form of parody and the use of any material was done under the “fair use” guidelines presented by the Digital Millenium Copyright Act.
He went on to explain Huneault’s use of a partial address in his DMCA counterclaims: “Moreover, to the extent there was a fake address provided, it was because Plaintiff is known for DOXXING individuals he does not like, and defendant has received credible threats from other frauditors in the past.”
In letting the claim stand, Judge DeMarchi wrote:
“Drawing all reasonable inferences in Mr. Cordova’s favor, the Court concludes that the allegations in the FAC are sufficient to state a claim of misrepresentation in violation of 17 U.S.C. § 512(f)(2) with respect to defendants’ nine DMCA counter-notices. See Shropshire v. Canning, 809 F. Supp. 2d 1139, 1148 (N.D. Cal. 2011) (denying motion to dismiss § 512(f)(2) claim where copyright owner made specific and plausible allegations that accused infringer did not have a good faith belief for statement in DMCA counter-notice, based in part on communications between copyright owner and accused infringer); Shande v. Zoox, Inc., No. 22-cv-05821-BLF, 2024 WL 2306284, at *4 (N.D. Cal. May 21, 2024) (denying motion to dismiss § 512(f)(1) claim where accused infringer alleged, among other things, contemporaneous comments of high-ranking company officials suggesting company did not believe accused material was infringing).
According to the FAC, in May 2022, defendants published a video on the Frauditor Troll Channel titled “How to do Fair Use Properly and Avoid Copyright Strikes.” Dkt. No. 39 ¶ 55. Mr. Cordova alleges that in that video, Mr. Huneault instructs viewers on how to make commentary videos that are “100% safe fair use.” Id. ¶ 56. The instructions include inserting commentary “about 40 seconds to every minute [of the original video],” using lengthy introductions and conclusions, interspersing other clips to “increase the proportion of time that is something else than one specific video,” and using “less than fifty percent of a specific video.” Id. Mr. Huneault further advises his viewers that one is “unlikely to get a copyright strike,” if he or she “only us[es] 30% of someone’s video.” Id. Mr. Cordova alleges that, in contrast to this advice, defendants’ videos reproduced approximately 54% of Another Chad; 62% of Courthouse Fail; and 81% of Belmar Library. Id. ¶¶ 48, 50, 54. Thus, regardless of whether Mr. Huneault’s advice to others reflects an accurate understanding of the fair use doctrine, Mr. Cordova contends that these allegations indicate defendants lacked a good faith belief that their videos (all of which use more than 50% of each original video) are entitled to protection and were removed by mistake. See id. ¶¶ 57, 97 n.13; see also Dkt. No. 46 at 10-11.
In addition, the FAC alleges that on July 5, 2023, the same day defendants submitted eight of the nine counter-notices at issue, Mr. Huneault emailed Mr. Cordova, claiming he had “talked to a lawyer” and demanding payment of $9,000. Dkt. No. 39 ¶ 67. Mr. Huneault also stated: “You already know the videos will be reinstated in 3 weeks through the counter notifications system.” Id. In a separate email on the same date, Mr. Huneault allegedly warned Mr. Cordova that “[i]f I counter every strike and they all get reinstated eventually it could penalize your channel.” Id. ¶ 66. The FAC also alleges that on July 6, 2023, Mr. Huneault posted a video discussing Mr. Cordova’s takedown notices and defendants’ counter-notices, in which he stated: “I already filed the counter notifications . . . [Plaintiff] has 10 days to reply . . . then it gets reinstated . . . I beat 35 copyright strikes.” Id. ¶ 69. Mr. Cordova argues and alleges that these statements, coupled with defendants’ misrepresentations about their service address and retention of counsel, show that defendants viewed the DMCA counter-notice procedure as a mere tactic to obtain automatic reinstatement of the accused videos, knowing that false assertions of “fair use” would likely go unchallenged, due to the burden and expense of litigation. Id. ¶¶ 68, 71, 97, 104;
The authority on which defendants rely does not support a contrary conclusion. As Mr. Cordova observes, all of defendants’ cases addressed questions of fair use and/or knowing misrepresentation on summary judgment, not at the pleading stage. See Rossi, 391 F.3d at 1002 (“We review a district court’s grant of summary judgment de novo.”); Lenz, 815 F.3d at 1150 (same); Hosseinzadeh, 276 F. Supp. 3d at 39 (“Before the Court are dueling motions for summary judgment.”).6 Indeed, in Lenz, the Ninth Circuit held that, in that case, “a jury must determine whether [defendant’s] actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.” Lenz, 815 F.3d at 1154 (emphasis added); see also id. n.3 (“[T]he question is whether the analysis [defendant] did conduct of the video was sufficient . . . to form a subjective good faith belief that the video was infringing . . . that question is for the jury, not this court to decide.”) (emphasis added).”
Judge DeMarchi also rebuffed Vondran for mischaracterizing the Hosseinzadeh v. Klein decision in a footnote:
“Defendants misrepresent Hosseinzadeh as a decision on a motion to dismiss at the pleading stage. See Dkt. No. 43-1 at 6-7. It is not. Nor was the district court’s decision affirmed on appeal, as defendants contend. See id. In their reply, defendants continue to refer to a “Second Circuit” decision cited and described as “Hosseinzadeh v. Klein, 900 F.3d 39, 50-51 [sic] (finding fair use as a matter of law).” Dkt. No. 54 at 9. The Court can locate no such decision. Defendants say that the mischaracterization of Hosseinzadeh and its appellate history in their opening motion was a “simple mistake,” id. at 9, but they do not explain why they repeat the same mistake in their reply.”
Judge DeMarchi’s ruling on claim four was much less harsh for Huneault. The claim involves circumvention of YouTube’s technologies to download Cordova’s content.
DeMarchi wrote:
The DMCA provides that “to ‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” 17 U.S.C. § 1201(a)(3)(A). According to the FAC, defendants circumvented YouTube’s technological measures by using “software applications, ripping utilities, or browser extensions specifically designed to bypass” YouTube’s technological measures. Dkt. No. 39 ¶¶ 36, 117. Mr. Cordova alleges that defendants’ tools “retrieve and decrypt the obfuscated streaming URLs, enabling [d]efendants to make local copies of [p]laintiff’s videos.” Id. ¶ 36.
Defendants argue that the FAC relies on conclusory allegations and describes nothing more than defendants’ “downloading” or “screen-recording” a publicly available video. Dkt. No. 43-1 at 10; Dkt. No. 54 at 7. Defendants also fault Mr. Cordova for failing to allege “what tools were used, [and] when such [tools were] used.” Dkt. No. 54 at 7.
Defendants mischaracterize the allegations in the FAC. Moreover, defendants cite no support for their apparent contention that a plaintiff must identify in his complaint the specific tools used to circumvent the technological measures, or a date on which those tools were used, in order to survive a motion to dismiss. As noted above, the Court does not consider and weigh defendants’ opposing evidence when addressing a Rule 12(b)(6) motion to dismiss.
Drawing all reasonable inferences in Mr. Cordova’s favor, the Court concludes that the FAC plausibly alleges that defendants circumvented YouTube’s technological measures using the described techniques in order to download his videos, and therefore adequately pleads the third element of the § 1201(a)(1) claim.
Again, while DeMarchi’s rulings give a good indication how similar claims by Huneault may fare in both his response to the second amended complaint and his counter claims, her rulings are not final.
We will also cover Cordova’s motion to dismiss Huneault’s remaining counter claims later this weekend.
This is a breaking news story.
