IP Law Daily, COPYRIGHT NEWS: Notorious ‘stalker’ website petitions Supreme Court to overturn Tenth Circuit’s contributory infringement finding, (Mar 5, 2024)

By Deirdre Kennedy

The petitioner alleged that the Tenth Circuit ignored or misconstrued the Supreme Court’s holdings on materiality and knowledge in the copyright context.

The operator of the contentious website Kiwi Farms filed a petition for certiorari with the United States Supreme Court in its dispute with songwriter Russell Greer who became a target of the website over whether the website operator was a contributing infringer of the songwriter’s material which was posted by users of the site. The petitioner alleges that the Tenth Circuit erred when it found that the songwriter properly alleged the three elements of contributary infringement. The case is Joshua Moon and Kiwi Farms v Russell G. Greer, Dkt. No. 23-958.

The lawsuit revolves around a website founded by Joshua Moon known as Kiwi Farms, which has become a popular platform for harassment campaigns. The lawsuit was brought by Russell Greer, an aspiring songwriter who claims to have been the target of the stalking website. The songwriter himself has an unusual past with the courts, having famously—and unsuccessfully—sued Taylor Swift for her failure to respond to his gifts and other romantic gestures.

After discovering that these works had been allegedly uploaded by users to the Kiwi Farms—and mocked mercilessly by users of the site—the songwriter brought a copyright infringement lawsuit against the website and its founder. The district court granted the website’s motion to dismiss. On appeal, the Tenth Circuit Court reversed the district court’s dismissal of Greer’s contributory copyright infringement claim on the basis that: (1) Kiwi Farms users directly infringed on Greer’s copyrights when they posted links to Google Drives containing infringing material; (2) that Moon had knowledge of this upon receipt of Greer’s DMCA takedown notice; and (3) that Moon’s unredacted publication, on Kiwi Farms, of Greer’s takedown notice combined with the additional mockery of same comprised “encouragement” and/or “material contribution” to the direct infringers.

The Petitioner asks the Supreme Court to review the decision.

Requisite knowledge. The judicial doctrine of contributory infringement is present when “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another…” The Petitioner noted that the Court of Appeals very liberally construed the copyright claims in favor of the pro se Plaintiff Greer, and in doing so effectively adopted a standard for contributory copyright infringement whereby the requisite knowledge element is satisfied by mere receipt by an Internet service provider of a Digital Millennium Copyright Act (DMCA) takedown notice. Petitioner argues that this is “flatly incorrect” under Supreme Court precedent. For example, in MetroGoldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), the Supreme Court affirmed that constructive knowledge alone is insufficient to establish contributory infringement, stating that a plaintiff must show something “beyond mere distribution with knowledge of third-party action … One infringes contributorily by intentionally inducing or encouraging direct infringement.” In finding contributory infringement in that case, the Court did so only after a careful review of evidence showing actual knowledge of wholesale infringement.

Petitioner asks the Court to “un-muddy the waters,” by finding that “actual knowledge” is required for contributory copyright infringement to be found.

“Notice equals knowledge.” Petitioner contends that the Tenth Circuit also erred in holding that publication of a “takedown notice” in combination with criticism and parody thereon satisfied the “material contribution” element of contributory copyright infringement. Petitioner invites the Supreme Court to clarify, consistent with other courts, that: (a) both posting takedown notices and literary criticism are protected free speech and cannot form the basis of a “material contribution” and/or is de minimis; and (b) consistent with the overwhelming weight of case law a “material contribution” must be commercially driven. Petitioner argues that posting takedown notices is a societally important exercise of constitutionally protected free speech and cannot serve as the predicate for contributory infringement. Petitioner notes that the practice of posting takedown notices is well established among free speech advocates; there are entire Internet databases dedicated to re-publishing takedown notices for exactly that reason. Further, parodying or criticizing music and literature is a well-established exercise of constitutionally protected free speech and a well-established and transformative fair use under the Copyright Act.

Misunderstanding of technology. Petitioner also contends that the Tenth Circuit Court’s decision essentially created liability for operators of every public platform based on a fundamental misunderstanding of technology. He argues that on two separate occasions in the Tenth Circuit decision, that Court acknowledged the fact that the alleged copyright infringement took place on a Google Drive. They erroneously suggested, however, that the relevant Google Drive account was somehow “on” Kiwi Farms. Petitioner asks the Supreme Court to take notice that this allegation is technologically impossible, and that there is no conceivable way for the Plaintiff to “take down” material that is on a third party’s servers.

The Case is No. 23-958.

Attorneys: Matthew D. Hardin (Hardin Law Office) for Joshua Moon.

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