Sons Of Confederate Veterans Sued Over Bogus DMCA Takedown

As you'll recall, earlier this month we wrote about this bizarre situation in North Carolina, in which the University of North Carolina agreed to give a bunch of racists $2.5 million to settle a lawsuit before the lawsuit had even been filed. The details of the story came out due to some inquisitive digging by North Carolina lawyer Greg Doucette. And, in response to him publishing the details, including a "victory" letter sent by the head of the North Carolina Sons of Confederate Veterans (in which it is admitted that they obviously had no legal standing to sue), Doucette's Dropbox account was blocked thanks to a bogus DMCA letter from the group. Doucette retained lawyer Marc Randazza, who sent the Sons a letter demanding they use the $2.5 million to fund scholarships for African American UNC students or face a lawsuit for the bogus takedown. That letter argued that the bogus DMCA notice violated Section 512(f) of the DMCA, which (in theory) is supposed to stop abusive takedowns by punishing "misrepresentations" in takedown notices.

As I noted at the time, Section 512(f) of the DMCA is effectively dead, as courts rarely enforce anything about it and, at best, have said that those issuing a DMCA notice simply only need to consider fair use and if they, in their minds, think it's not, can still send the takedown. However, Randazza and Doucette have decided to move forward anyway and have sued the NC Sons of Confederate Veterans, along with its leader Kevin Stone, and Dropbox (who blocked Doucette's account). As is fairly typical of a Randazza filing, it's an entertaining read:

Some claim that memorials like these are there to celebrate"southern heritage" rather than as memorials to the subjugation of AfricanAmericans.

When Silent Sam was unveiled in 1913, KKK supporter Julian Carrannounced that the Confederate soldiers it honored had saved "the very life ofthe Anglo Saxon race in the South," and told the following story:

"One hundred yards from where we stand, less than ninety daysperhaps after my return from Appomattox, I horse-whipped a negrowench until her skirts hung in shreds, because upon the streets of thisquiet village she had publicly insulted and maligned a Southern lady,and then rushed for protection to these University buildings wherewas stationed a garrison of 100 Federal soldiers. I performed thepleasing duty in the immediate presence of the entire garrison, andfor thirty nights afterwards slept with a double-barrel shotgun undermy head."

With a metaphorical flamethrower taken to this myth of "southernpride," student protesters tore the statue down on Monday, August 20, 2018. TheUniversity of North Carolina did not restore the statue to its former "glory."

On November 27, 2019, the Sons of Confederate Veterans filed alawsuit against UNC for its failure to return Silent Sam to his location, despitelacking standing (and knowing it) to bring such a suit. Despite the fact that theNCSCV lacked standing, seven minutes after the suit was filed, a state court judgeapproved a settlement between the parties.

The lawsuit has been filed not in North Carolina, but in Norther California (the other NC). The reasoning here is that because this lawsuit is over a DMCA takedown notice to Dropbox and Dropbox terms require users to consent to Northern California jurisdiction:

This Court has personal jurisdiction over Defendants because a) inusing Dropbox, they consented to personal jurisdiction and venue in the state andFederal courts in San Francisco, California; and b) the sending of the takedownnotice at issue constitutes sufficient minimum contacts under Cal. Code Civ. Proc. 410.10 and U.S. Const., Amdt. XIV, where Defendants purposefully directed theiracts toward California, committing an intentional act, expressly aimed atCalifornia, causing Plaintiffs harm in California as they have been deprived of thefull use of their California-based Dropbox account.

This also appears to be the sole reason that Dropbox is listed as a defendant in the case. The complaint notes that it is not asking for any money from Dropbox, just to have Doucette's account restored:

Dropbox is named as a defendantherein only to achieve complete relief; Plaintiffs seek no damages againstDropbox.

Well, these are the stated reasons for filing in California. I am assuming that the actual reason for suing in Northern California is that probably the only two successful 512(f) lawsuits both came in the Northern District of California and the 9th Circuit has probably the most caselaw on such claims -- but that includes an appellate ruling that the "good faith" requirement is subjective. That is, if the takedown notice filer believes in their minds that the DMCA notice was legit, that's enough. Of course, one other possible reason for filing in Northern California rather than North Carolina? Folks in California might not be quite as sympathetic to the Confederacy as folks in North Carolina.

As much as I'd like to see better rulings on 512(f) (or for Congress to fix it so that it has some teeth), I find it unlikely that this case will get very far -- and, frankly, the California filing feels a bit like jurisdiction shopping. It's not totally egregious as such (Dropbox is here in northern California and there are legit arguments for why the recipient of the takedown may be the proper party for determining jurisdiction), but... it's still a stretch. The declaratory judgment for non-infringement seem like much stronger claims, though they won't generate monetary returns.

In the meantime, the situation with UNC and the statue itself is far from over. Outcry and protests over the sketchy deal has resulted in at least one UNC funder pulling a $1.5 million grant to the University. And it doesn't sound like the outcry and protests are calming down. Separately, a group of UNC students have moved to intervene in the original case (the one that was filed and settled in mere minutes) trying to have the settlement tossed and then the case dismissed entirely.