Tuesday saw a new filing in the case of Executive Lens LLC. v. Rapkin when That Randall S. “The Unhinged Attorney” Newman filed his response to defendant lee Rapkin’s motion to dismiss his first amended complaint.
Newman is representing a limited liability company owned by Christopher “Denver Metro Audits” Cordova, in a lawsuit against an attorney Lee Rapkin, who filed DMCA Counter Claims on behalf of a YouTuber literally only known as “The Exposer.”
The Exposer’s identity has been a weird side issue with the lawsuit. While the Exposer is named a defendant, his identity has never been established due to Rapkin’s elevated defense of her client.
Instead, the heart of the lawsuit and at the heart of the motion to dismiss are Rapkin’s actions when she filed multiple DMCA counter notices on behalf of The Exposer substituting her own information in order to prevent The Exposer from the legal consequences associated with improperly using Cordova’s material.
Cordova, through Newman, also asserts that Rapkin submitted the DMCA counter notices without reviewing the videos and misrepresented the content of the videos in her sworn statement and issued the same blanket counter notice for all of the videos at issue.
Newman wrote:
“The FAC does not allege that Rapkin merely misapplied the fair-use doctrine or reached an incorrect legal conclusion. It alleges that she certified, under penalty of perjury, that seventeen separate videos were “significantly transformed by detailed editing and elaborate commentary throughout,” when at least eight of those videos contain no commentary of any kind. A video with zero narration cannot factually contain “elaborate commentary throughout.” That is not a legal judgment; it is a verifiable factual assertion, and Plaintiff plausibly alleges it was false.
Plaintiff further alleges that Rapkin submitted a single, blanket counter-notice covering seventeen non-homogeneous videos without conducting a video-by-video review. Certifying uniform, detailed factual characteristics across disparate videos, some with commentary, some without, some consisting almost entirely of Plaintiff’s footage, supports a reasonable inference of knowing misrepresentation or, at minimum, willful blindness. Under Ninth Circuit law, deliberate avoidance of review while making categorical factual certifications satisfies § 512(f)’s subjective scienter requirement.
Plaintiff also alleges that Rapkin concealed the identity of the subscriber required to be disclosed under § 512(g)(3)(D), substituting her own information while continuing to withhold the channel operator’s identity even after litigation commenced. That conduct is not pleaded as a standalone statutory violation, but as circumstantial evidence of intent. Taken together with the standardized factual misrepresentations and alleged lack of review, it supports the inference that the counter-notification was not submitted as part of a traditional, independent legal assessment, but as a strategic mechanism to shield an anonymous channel from platform enforcement consequences by exploiting YouTube’s automated reinstatement machinery.”
Cordova, through Newman, was essentially forced to file suit against Rapkin because YouTube requires legal action to be taken to prevent the restoration of the videos that have received counter notifications.
They ask the court to reject Rapkin’s motion to dismiss as she knowingly and willingly counter notices in bad faith and would allow others to use the same process in future suits to avoid legal consequences of their misuse of copyrighted material.
“Defendant’s proposed rule would immunize the very conduct that caused those injuries, knowing misuse of the counter-notification process to impose immediate litigation costs, while nullifying § 512(f)’s express damages provision whenever a copyright owner complies with the statute. Nothing in § 512(f) supports such a loophole, and this Court should not adopt a construction that rewards abuse and punishes diligence. Defendant’s reading would erase that remedy whenever the copyright owner does exactly what the statute forces him to do, file suit promptly. That cannot be correct.
As Business Casual makes clear, twice, and by two different judges, § 512(f) applies where a counter-notice is used as a coercive tool to force litigation, regardless of whether reinstatement ultimately occurs. Defendant’s “reinstatement-only” theory is incompatible with the statutory text, the structure of § 512, and the case law rejecting exactly that argument.”
And:
“The inference is straightforward. An attorney acting in good faith to correct a genuine mistake has no rational reason to hide the identity of the very party who must stand behind the Counter-Notice’s statutory declarations, including consent to jurisdiction. But an actor seeking to exploit the DMCA process for channel-preservation reasons does have such a reason: anonymity reduces accountability, frustrates follow-up enforcement, and increases the costs and friction imposed on the copyright owner, who is forced into emergency litigation against a moving target. (Id. ¶¶ 52–54, 66–75).
At this stage, Plaintiff need not prove the ultimate reason for Rapkin’s concealment of the Exposer’s identity. The question is whether the pleaded facts, taken together, plausibly support scienter. They do. The FAC alleges (i) objectively false, verifiable factual certifications applied across non-homogeneous videos, (ii) non-review or willful blindness, and (iii) purposeful nondisclosure of the subscriber’s identity despite statutory text that requires disclosure. Those allegations jointly support a plausible inference that Defendant’s Counter-Notice was not a good-faith correction of a mistake, but a knowing misuse of the counter-notice mechanism. Dismissal would improperly resolve intent and credibility in Defendant’s favor, issues that are quintessentially factual and inappropriate on a Rule 12(b)(6) motion.”
Attorney Newman is seeking leave to amend the complaint on behalf of his client as an alternative should the Judge find sufficient grounds to grant Rapkin’s request to dismiss the lawsuit against her.
