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Handshoe v. Perret

United States District Court, S.D. Mississippi, Southern Division

September 13, 2018

DOUGLAS HANDSHOE PLAINTIFF
v.
VAUGHN PERRET, et al. DEFENDANTS

         MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CHARLES LEARY'S [236] MOTION TO QUASH, [247] MOTION SEEKING TO EXTEND DEADLINES OF THE CASE MANAGEMENT ORDER, AND [249] MOTION FOR LEAVE TO FILE MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING DEFENDANT LEARY'S [225] MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING PLAINTIFF DOUGLAS HANDSHOE'S [218] MOTION FOR PARTIAL SUMMARY JUDGMENT; AND DISMISSING HANDSHOE'S CLAIM AGAINST LEARY IN COUNT 5 WITH PREJUDICE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the following Motions: (1) a Motion [218] for Partial Summary Judgment filed by pro se Plaintiff Douglas Handshoe (“Handshoe” or “Plaintiff”); (2) a Motion [225] for Partial Summary Judgment filed by pro se Defendant Charles Leary (“Leary” or “Defendant”); (3) a Motion [236] to Quash filed by Leary; (4) a Motion [247] Seeking to Extend Deadlines of the Case Management Order filed by Leary; and (5) a Motion [249] for Leave to File Motion for Partial Summary Judgment filed by Leary. These Motions are fully briefed.

         After due consideration of the Motions, the related pleadings, the record, and relevant legal authority, the Court finds that Leary's Motion [236] to Quash and Motion [247] Seeking to Extend Deadlines should both be granted in part and denied in part, that Leary's Motion [249] for Leave to File Motion for Partial Summary Judgment should be denied, that Handshoe's Motion [218] for Partial Summary Judgment should be denied, and that Leary's Motion [225] for Partial Summary Judgment should be granted. Handshoe's remaining claim against Leary in this case, contained in Count 5 of the Third Amended Complaint, will be dismissed with prejudice. Leary's Counterclaims will proceed.[1]

         I. BACKGROUND

         A. Factual Background

         For years, Plaintiff Douglas Handshoe (“Handshoe” or “Plaintiff”) has been embroiled in litigation in various courts throughout the United States and Canada with Leary and certain of the other former Defendants in this case. In the present dispute between these pro se litigants, Handshoe's Third Amended Complaint [90] is the operative pleading. The Court has previously resolved a number of motions, leaving for resolution only Leary's Counterclaims against Handshoe and a single claim by Handshoe against Trout Point Lodge Ltd. (“Trout Point Lodge”) and Charles Leary (“Leary”) in Count 5 of the Third Amended Complaint. This particular claim arises out of an alleged misrepresentation under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(f). See 3d Am. Compl. [90] at 40-41. All of Handshoe's other claims have been dismissed.[2]

         The gravamen of Plaintiff's claim in Count 5 is that he challenges a copyright “takedown notice” sent by Defendants to YouTube on February 15, 2014, allegedly under the auspices of the DMCA. Id. at 40. This notice related to a photograph depicting Leary and former Defendant Vaughn Perret (“Perret”) standing with their dog in front of Trout Point Lodge (the “Photograph”). Decl. of Charles L. Leary [228] at 1; see also Photograph [219-3] at 2. The Photograph was used by Handshoe in a YouTube video he produced on behalf of Slabbed New Media, but apparently without Trout Point Lodge's permission. See Decl. of Charles L. Leary [228] at 1-2.

         1. The Photograph

         In 2013 and 2014, Leary was a director and secretary of Trout Point Lodge, which is a lodge or resort located in Nova Scotia, Canada. Id. at 1. According to Leary's Declaration [228], the Photograph at issue was taken by Trout Point Lodge employee Kara Crowell in the normal course of her employment with the Lodge and, in Leary's opinion, it has always been the intellectual property of Trout Point Lodge. Id. at 2. The Photograph was registered with the Canadian Copyright Register on July 8, 2013, with Trout Point Lodge identified as the owner. See Canadian Copyright Register [219-11] at 2-3.

         The Photograph had been published with permission by the Toronto Star on the newspaper's website as part of an article about the parties' legal case in the Nova Scotia Supreme Court. See Decl. of Charles L. Leary [228] at 2. Leary believes that Handshoe downloaded the Photograph from the Toronto Star website to use without authorization in a YouTube video. Id. at 1-2. Handshoe admits in his Memorandum [219] in support of his request for partial summary judgment that the Photograph was “obtained by [him] for Slabbed New Media, LLC from the Toronto Star website, ” but asserts that the Toronto Star owns the copyright. Mem. [219] at 3. Slabbed apparently registered the video with the United States Copyright Office on January 31, 2017. See Public Catalog [219-2] at 2.

         2. The Nova Scotia Supreme Court Case

         In 2013, Leary, Perret, and Trout Point Lodge initiated a lawsuit against Handshoe for copyright infringement in the Nova Scotia Supreme Court in Canada arising out Handshoe's use of the Photograph. Decl. of Charles L. Leary [228] at 1. The plaintiffs in that case later added a defamation claim. Id. According to Leary, the Nova Scotia Supreme Court rendered a decision on February 14, 2014, finding that Trout Point Lodge owned the copyright to the Photograph and that Handshoe had infringed the copyright. Id. On February 26, 2014, the Nova Scotia Supreme Court entered two separate, what have been referred to as “component, ” judgments against Handshoe. See Order [9-1] at 2; Order [9-2] at 2-3. One judgment involved the defamation claim, see Order [9-2] at 2-3 (the “Defamation Judgment”), while the other dealt with the copyright infringement claim, see Order [9-1] at 2 (the “Copyright Judgment”).

         3. Leary's Completion of the YouTube Form

         After he learned of the ruling in the Nova Scotia Supreme Court case, Leary avers that on February 15, 2014, he conducted an internet search for a YouTube web page related to making copyright infringement claims. Decl. of Charles L. Leary [228] at 2. At the time, Leary was located in East Kemptville, Nova Scotia, Canada. Id. Leary located a page of instructions and a fillable form for submitting a copyright claim. Id. According to Leary,

[t]he form did not identify that it was a form specified by the law of any specific country, and in fact required that I choose what country the copyright was in. I located and played the Slabbed New Media YouTube video from Nova Scotia. I saw the Trout Point Lodge photo being used in the video. The form said: “If you believe your copyright-protected work was posted on YouTube without authorization, you may submit a copyright infringement notification.” I clicked on the button for “submit a copyright complaint.” I chose Canada as the country of the copyright issue. I was acting solely as an officer of Trout Point Lodge in submitting the form.

Id.

         Leary maintains that he did not intend to invoke the DMCA when he filled out the YouTube form. Id. at 3. According to Leary, he

was in Canada complaining to YouTube about Canadian copyright after having received a judgment from a Canadian court of competent jurisdiction over copyright matters. It was not obvious to me, and in fact it was unapparent, that YouTube was having me fill out a DMCA notice. I believed YouTube would act under their own policies and Canadian law because I indicated Canada was the territory of jurisdiction. I believe that is what YouTube did by blocking the video in Canada.

Id.

         Handshoe has supplied what he asserts are YouTube's relevant terms of service related to making copyright infringement claims. See Mem. [219] at 5; Terms of Service [219-15] at 3-7. It is unclear from the current record, however, whether these terms of service were the same as those in effect in Canada on the date Leary submitted the online form to YouTube in 2014. For this reason they are of little, if any, probative value in resolving the present Motions. Compare https://www.youtube.com/static ?template=terms (containing section related to the DMCA) (last viewed June 22, 2018), with https://www.youtube.com/static?gl=CA &template=terms (not containing section related to the DMCA for Canadian terms of service) (last visited June 22, 2018); see also Terms of Service [219-15] at 7 (stating on the Terms of Service exhibit supplied by Handshoe that the “content location” was the United States).

         4. Subsequent activity involving YouTube

         On February 15, 2014, YouTube e-mailed Handshoe informing him that it “had received a privacy complaint from an individual regarding [his] content” contained in the video located at http://youtube.com/watch?v=Mpc4bjaLno. See EMail [219-12] at 2. YouTube's e-mail did not mention or reference the DMCA. See id.

         On February 19, 2014, YouTube e-mailed “foodvacation” relating to the notice Leary had submitted on behalf of Trout Point Lodge.[3] See E-Mail [219-14] at 2. YouTube requested additional information to verify that Leary was affiliated with a corporate entity. See Id. YouTube's e-mail provided that

the content will remain live on the site until we have received this verification and [ ] abuse of the copyright notification process will result in the termination of your YouTube account. Under DMCA Section 512(f), any person who knowingly materially misrepresents that material or activity is infringing may be liable for damages.

Id. (emphasis added).

         On July 14, 2014, Handshoe submitted a counter-notification to YouTube, swearing under penalty of perjury that he held a good faith belief that the video was removed due to a mistake or misidentification of the material. See E-Mail [219-16] at 2. On that same date, YouTube forwarded the counter-notification to “foodvacation” via e-mail. See E-Mail [219-18] at 2. On July 15, 2014, former Defendant Perret, not Leary, responded from the “foodvacation” e-mail to YouTube arguing that “[t]his is an actionable instance of misrepresentation under the Digital Millennium Copyright Act by Douglas Handshoe” and referenced the decision of the Nova Scotia Supreme Court. Id. at 3.

         YouTube e-mailed Handshoe on August 6, 2014, to inform him that it had received a court order with regard to the video's content, E-Mail [219-19] at 2, and that it would not be “able to restore global access to your video under these circumstances. Your video will not be viewable in Canada, but it will be available in all other countries, ” id. YouTube also e-mailed “foodvacation” to state that the video had been blocked and was no longer viewable in Canada. See E-Mail [219-18] at 3. According to YouTube, the video remained live in all other locations, unless restricted by the uploader. See id.

         Also on August 6, 2014, both Leary and Perret responded to YouTube from the ...


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