IP Law Daily, COPYRIGHT—N.D. Cal.: False DMCA counter-notification can be actionable even if the content in question is never actually restored, (Mar 26, 2026)

By Matthew Hersh, J.D.

The original copyright owner was allegedly harmed because he was forced to rush to court to keep the material down.

A content creator whose YouTube videos had been the subject of a DMCA takedown notification could be subject to a damages action for filing a false counter-notification even if YouTube never eventually restored the videos in question, the federal court for the Northern District of California has held. The court, in wading into a heated dispute between two prominent social media activists and their lawyers, found that the copyright owner who filed the initial takedown notifications adequately pleaded that he was harmed by the allegedly false counter-notification because he was forced into “time-sensitive litigation to prevent reinstatement” (Executive Lens LLC v. Rapkin, No. 5:25-cv-06048-NC (N.D. Cal. Mar. 19, 2026)).

The lawsuit began as a dispute between the operators of two YouTube channels in the so-called “First Amendment Auditing” community. Christopher Cordova operates Denver Metro Audits, a channel that hosts videos of Cordova’s interactions with police officers and other government officials. The other operator, an anonymous YouTuber known as “The Exposer,” used to run a channel known as “1a Audits Exposé,” although the site no longer operates on YouTube under that name. The two social media personalities have no love lost for one another; a search of YouTube and other social media sites immediately turns up a wide range of videos in which the two activists and their allies take public shots at one another and—for good measure—their attorneys.

The dispute centers around 27 videos that The Exposer posted to YouTube in 2025. The videos were ostensibly in the style of so-called “reaction videos” in which The Exposer ran clips borrowed from Denver Metro Audits and purported to comment on them. Cordova, through his LLC Executive Lens, filed a DMCA takedown notice to YouTube, which promptly took 17 of them down. Shortly thereafter, The Exposer’s attorney Lee Rapkin submitted a counter-notice to YouTube asserting that each of the videos was “significantly transformed [by the Exposer] by detailed editing and elaborate commentary throughout” and therefore qualified as fair use.

Cordova then brought a lawsuit—but not for copyright infringement. Instead, he sued Rapkin and his client under a provision of the Digital Millennium Copyright Act, 17 U.S.C. 512(f), that authorizes damages actions against persons who file takedown or counter-takedown notices containing material misrepresentations. Rapkin and his client moved to dismiss, leading to this opinion.

Damages. The court refused to dismiss the complaint. The first question it had to confront was whether Cordova adequately pleaded that he was damaged by the allegedly misleading counter-notification. The DMCA provides that once an internet service provider receives a counter-notification, it must restore the material within 14 business days unless the copyright owner brings a timely court action “to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.” Cordova’s lawsuit did seek such a restraint within a timely manner, which meant YouTube never actually put the videos back up. So was Cordova actually harmed by the alleged misrepresentation? Cordova argued that he was. The court agreed.

The court found that Cordova’s argument was supported by legal precedent and logic. District courts in New York, Florida, and California, the court noted, had found that a misrepresentation claim may be viable where a service provider “threatened to reinstate the infringing material and likely would have done so but for the plaintiff’s filing legal action.” This interpretation of the DMCA, the court noted, “follows statutory language—accepting a claim, acting upon it, and threatening reinstatement but-for timely legal action.” It also prevents “an absurd result,” the court found. “Limiting valid claims to ones where there is actual reinstatement creates a circular issue: Section 512 would require the user to file a federal claim to prevent the reinstatement of their video, but that federal claim would inevitably fail because the video was not reinstated,” the court noted. Because Cordova alleged that he was forced into “time-sensitive litigation to prevent reinstatement,” the court concluded, he adequately alleged harm.

Knowing misrepresentation. The court also found that Cordova adequately alleged a knowing misrepresentation. Rapkin argued that Cordova did not allege facts that sufficiently demonstrated willful blindness because there were “no facts plausibly establishing that Rapkin knew that there was a high probability that the subject representations were false.” But Cordova met this pleading threshold, the court found. Indeed, the court noted, the complaint alleged that Rapkin withheld the Exposer’s identity and that the Exposer “publicly boasted about hiding behind [] Rapkin and a purported corporate entity to evade accountability, taunting [Cordova] that his identity would never be discovered and he therefore could not be held liable.” The complaint also alleged, the court noted, that Rapkin “took deliberate actions to avoid confirming that the subject videos did not contain commentary by not reviewing the videos.” These allegations, the court concluded, supported “a reasonable inference that Rapkin knew that the Exposer’s subject videos did not contain commentary and was therefore not subject to fair use.” The complaint would therefore move forward.

The Case is No. 5:25-cv-06048-NC.

Judge: Cousins, N.

Attorneys: Randall Scott Newman (Wolf Haldenstein Adler Freeman & Herz LLP) for Executive Lens LLC. Steven C. Vondran (The Law Offices of Steven C. Vondran, PC) for Lee Rapkin.

Companies: Executive Lens LLC

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