Page:Hosseinzadeh v. Klein.pdf/11

 the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.” 17 U.S.C. § 512(g)(3)(c) (emphasis added). Relevant to the current action, the DMCA prohibits “knowingly materially misrepresent[ing] … (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification[.]” 17 U.S.C. § 512(f).

The Ninth Circuit has held that, in submitting a takedown notification, “a copyright holder need only form a good faith belief that a use is not authorized.”, 815 F.3d 1145, 1153 (9th Cir. 2015), , — U.S. —, 137 S.Ct. 416, 196 L.Ed.2d 290 (2016), and, — U.S. —, 137 S.Ct. 2263, 198 L.Ed.2d 698 (2017) (citing, 391 F.3d 1000, 1004 (9th Cir. 2004) (emphasis added)). In other words, a copyright holder is not liable for misrepresentation under the DMCA if they subjectively believe the identified material infringes their copyright, even if that belief is ultimately mistaken. It is clear to this Court that the same subjective standard should apply to the “good faith belief” requirement for counter notifications. If the same standard did not apply, creators of allegedly infringing work would face a disparate and inequitable burden in appealing an online service provider’s decision to remove or disable access to their work. Given the fact that the statutory requirements for takedown notices and counter notifications are substantially the same, the DMCA plainly does not envision such a scheme. , 391 F.3d at 1005 (“Juxtaposing the ‘good faith’ proviso of the DMCA with the ‘knowing misrepresentation’ provision of that same statute reveals an apparent statutory structure that predicated the imposition of liability upon copyright owners only for knowing misrepresentations regarding allegedly infringing websites.”)). [sic]


 * d.

Because falsity is an element of defamation under New York law, truth is an absolute defense to a defamation claim. , 864 F.3d 236, 242–44 (2d Cir. 2017);, 799 F.3d 427, 440 (2d Cir. 2015) (“A slanderous statement, by definition, must be false.”); , 800 F.2d 298, 301 (2d Cir. 1986) (“Under New York law, … truth is an absolute, unqualified defense to a civil defamation action.”) (internal quotation omitted). It is well-established that “a statement need not be true, but can be  true, as when the overall ‘gist or substance of the challenged statement’ is true.”, 790 F.3d at 440 (quoting , 771 F.3d 118, 129 (2d Cir. 2014)) (emphasis in original);, 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (“The common law of [sic] … overlooks minor inaccuracies and concentrates upon substantial truth.”) (internal citation omitted).

“A statement is substantially true is the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.”, 864 F.3d at 243–44 (quoting , 883 F.Supp.2d 441, 458 (S.D.N.Y. 2012)) (internal quotation marks omitted); , 226 N.Y. 87, 123 N.E. 76, 78 (1919) (“When the truth is so near the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.”). “When a court interprets a publication in an action for defamation, the entire publication, as well as the circumstances of its issuance, must be considered in terms of its effect