Jose “Chille” DeCastro came another step closer to victory in his civil lawsuit against Jon “Irish Demon” O’Dea on Monday when United States Magistrate Judge Nathanael M. Cousins ordered the case be reassigned to a District Court Judge to grant in part DeCastro’s motion for default judgement.
DeCastro’s lawsuit sprang out of two events, O’Dea filing a counter claim after hitting with copyright claims by DeCastro and a 2024 event where O’Dea illegally accessed DeCastro’s YouTube channel and held livestreams featuring male on male pornography, resulting in the channel’s brief termination by YouTube.
O’Dea has found to be in default in the case as he was properly served and the judge determined that he had jurisdiction over the Irish YouTuber despite O’Dea’s residence in Ireland and his choice to ignore the suit.
Judge Cousins wrote:
As a preliminary matter, I find that the Court has federal subject matter jurisdiction under the “federal question” statute, 28 U.S.C. § 1331, and supplemental jurisdiction over the California state law claims under 28 U.S.C. § 1367(a).
The Court also has personal jurisdiction over Defendant because he committed an intentional act, aimed at a California resident, which caused harm he likely knew would be suffered in California. Levi Strauss & Co. v. J. Barbour & Sons Ltd., No. 3:18-cv-03540-WHO, 2019 WL 1117533, at *4 (N.D. Cal. Mar. 11, 2019).
Also, I find that service of process was proper, and that Defendant has actual knowledge of the case and Plaintiff’s motion for default judgment. And even further notice will be provided to Defendant before Judgment because the Court is requiring service of this Order on Defendant. Defendant thus will have a further opportunity to participate and object.
Addressing DeCastro’s DMCA misrepresentation claims, Judge Cousins wrote:
To state a claim for misrepresentation under the DMCA, a plaintiff must allege facts plausibly showing (1) that the defendant knowingly and materially misrepresented that its accused material was removed or disabled by mistake or misidentification; (2) the internet service provider relied on the misrepresentation in replacing the removed material or ceasing to disable access to it; and (3) the plaintiff was injured as a result. Automattic Inc. v. Steiner, 82 F. Supp. 3d 1011, 1026 (N.D. Cal. 2015). Whether a misrepresentation was made “knowingly” is assessed against a subjective standard; it requires a showing that the defendant had “some actual knowledge” of the misrepresentation and did not possess a good faith belief that the material was removed by mistake or misidentification. See Rossi v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000, 1004–05 (9th Cir. 2004); Hosseinzadeh v. Klein, 276 F. Supp. 3d 34, 44 (S.D.N.Y. 2017) (same subjective standard that applies to takedown notices also applies to counter-notices).
Plaintiff has sufficiently stated a claim for misrepresentation under the DMCA. He alleges that Defendant submitted a counter-notice, falsely asserting that his use of Plaintiff’s copyrighted video constituted non-infringing fair use. Compl., ¶¶ 95–99. Plaintiff’s allegations, taken as true, establish that Defendant re-broadcasted all or long stretches of Plaintiff’s livestreams with minimal reaction or other transformation, for his own monetization. Id. ¶¶ 21, 23–25. Defendant did so knowingly—he stated during the re-broadcasting that he was doing so viewers would not have to watch it on Plaintiff’s channel, thus depriving him of viewership. Id. ¶ 24. In response to Defendant’s counter-notice, YouTube reinstated one of the infringing videos, refused to take down the other infringing video, and denied Plaintiff recourse absent litigation. Id. ¶¶ 31–32. Lastly, Plaintiff alleges he was injured as a result. Id. ¶¶ 52–53.
All was not sunshine and happiness for DeCastro, who is being represented in the case by Randall SA. “The Unhinged Attorney” Newman, Esquire, as his request statutory damages was denied.
Cousins wrote:
Because the Court recommends finding that Plaintiff has failed to state a claim under the SCA, the Court recommends that Plaintiff is not awarded $1,000 statutory damages. Plaintiff does not seek statutory damages under the DMCA. ECF 27 at 2.
The Court recommends granting Plaintiff’s request for taxable costs of $405 to compensate him for the filing fee incurred in commencing this action. See Joe Hand Promotions Inc. v. Piacente, No. 10-cv-3429-CW-JCS, 2011 WL 2111467, at *9 (N.D. Cal. Apr. 11, 2011), report and recommendation adopted sub nom. Joe Hand Promotions, Inc. v. Picante, No. 10-cv-3429-CW, 2011 WL 2160631 (N.D. Cal. May 26, 2011) (awarding court filing fees).
DeCastro’s request for statutory damages became an issue as DeCastro declined to turn over his financial personal information in order make a solid case at damages. It is widely believed that due the fact that O’Dea resides in Ireland and has not responded in the case, that DeCastro made a conscious choice to limit damages to his $1,000.00 request to avoid turning over those details.
Judge Cousins ultimately ordered:
This case will be reassigned to a District Court Judge with a recommendation to:
- Grant in part the requested default judgment against Defendant as to the DMCA claim, and deny in part as to the SCA claim;
- Award Plaintiff $405 for the filing fee;
- Issue a permanent injunction against Defendant, and those acting with him, from reproducing, distributing, publicly performing, or publicly displaying the October and November 2022 videos identified in the Complaint; and
- Issue declaratory judgment, stating that Defendant had no lawful authorization to reproduce, rebroadcast, or publicly perform Plaintiff’s audiovisual works, and that Defendant’s use of those works does not constitute fair use.
Plaintiff is not seeking attorney’s fees or any other damages.
Plaintiff must serve this Order on Defendant and file proof of service. Any party may object to this recommended disposition by filing specific written objections within fourteen days after being served with a copy of this Order. Fed. R. Civ. P. 72(b)(2).
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