In Michael Rossi v. Motion Picture Association of America, the Ninth Circuit disposed of a movie website's appeal against the MPAA. The underlying suit brought by Rossi (dba InternetMovies.com) claimed 1) tortious interference with contractual relations, 2) libel, 3) intentional infliction of emotional distress, and other harms relating to the MPAA's temporary shutdown of the internetmovies.com website, which was effectuated by a cease and desist letter to Rossi's ISP.

The Ninth affirmed the lower court's ruling, holding that the MPAA was not liable to Rossi on the tortious interference claim because its actions complied with the "notice and takedown" provisions of the DMCA (17 U.S.C. § 512). As to the defamation and emotional distress claims, the Court found them unconvincing because the notice to the ISP was a privileged communication under the DMCA and was sent "within the bounds of decency."

Perhaps the most interesting portion of this case is the discussion of the DMCA's "good faith belief" requirement, which states that a party must have a good faith belief that infringing activities are occurring on a suspected site before it can send a takedown notice to the site's ISP. Rossi argued that the MPAA did not have an objective good faith belief before sending the notice because they did not do an investigation into the activities of internetmovies.com. Had the MPAA conducted such an investigation (by clicking on links advertising free movie downloads), it would have found that no infringement was actually occurring at internetmovies.com.

Instead, the Court sided with the MPAA, holding that there must only be a subjective good faith belief that infringing activity is occurring. Judge Rawlinson's arrival at this conclusion is supported by case law, Congressional intent and overall statutory structure of the DMCA.

The Court's subjective interpretation of good faith belief may be construed as giving copyright owners a license to shoot first ask questions later. Alternatively, it could be viewed as a reasonable decision in light of the facts of this case. Internetmovies.com revealed the following contents: "Join to download full length movies online now! new movies every month"; "Full Length Downloadable Movies"; and "NOW DOWNLOADABLE." These statements were followed by graphics for a number of the MPAA's copyrighted motion pictures.

Regardless of one's view on the issue, this particular DMCA decision helps define the narrow boundaries of tort exposure under the DMCA. Since the statute's inception, the DMCA has proven to be a heavy-handed and sometimes effective approach to copyright infringement on the internet, and it has created a big grey area as to acceptable and unacceptable online behavior. After reading this case, I feel compelled to pass on the guidance uttered by counsel for a prominent electronic consumer rights organization: "Just don't get caught."