Youtube, LLC v. Brady

Filing 1

COMPLAINT with jury demand against Christopher L Brady ( Filing fee $ 400, receipt number ANEDC-3998980), by Attorney James P. King on behalf of Youtube, LLC(King, James)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
YOUTUBE, L.L.C., a Delaware Limited
Liability Company,
Plaintiff,
v.
CHRISTOPHER L. BRADY, an individual,
Defendant.

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CASE NO.: 19-353

COMPLAINT FOR VIOLATION OF
THE DIGITAL MILLENNIUM
COPYRIGHT ACT – 17 U.S.C.
§ 512(f)
DEMAND FOR JURY TRIAL

Defendant, Christopher L. Brady (“Brady), has repeatedly attempted to harass and extort
money from YouTube content creators through bogus allegations of copyright infringement. This
lawsuit seeks to hold him accountable for that misconduct, and for the damage he has caused to
YouTube.
In 1998, Congress enacted the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the
“DMCA”), to provide a framework for addressing claims of online copyright infringement. In
general, the DMCA immunizes online service providers from claims of copyright infringement
based on materials uploaded to the services by users, if the services promptly remove allegedly
infringing materials upon receipt of notices from copyright holders. Through these notices, the
content of which is statutorily prescribed, copyright holders are able to secure the expeditious
removal of allegedly infringing materials from online services without the need to prove a claim
of infringement in court. Users that receive infringement notices they contend are incorrect may
file a counter notification by providing their name, address, and telephone number, and consent to
service of process by the complaining party.
Congress also recognized that these “takedown notices” could be used maliciously to
secure the removal of content that was not legitimately claimed to be infringing. Accordingly, it

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included a provision in the DMCA authorizing those aggrieved by fraudulent notices to bring an
action against the sender for damages. This is such an action.
Plaintiff YouTube, L.L.C. (“YouTube”) alleges on personal knowledge as to its own acts
and on information and belief as to the actions of others, as follows:
THE PARTIES
1.

Plaintiff YouTube is a Delaware Limited Liability Company with its principal place

of business in San Bruno, California. As a global destination for public, online video, YouTube
has over 2 billion monthly logged-in users. YouTube offers a free online platform that allows
users to post videos and to watch videos posted by others. Users organize their videos into channels
that can have millions of subscribers and some become major media businesses in their own right.
Since its founding in 2005, YouTube has had a profound impact on commerce, culture, and politics
in this country and around the world. It has enabled first-hand reporting from war zones and inside
repressive regimes, allowed unknown performers and filmmakers to rise to fame, inspired laughter
at the antics of dancing babies and skateboarding cats, let students of all ages audit classes at
leading universities, and given creators of all sorts a powerful way to promote their work to a
global audience.
2.

Defendant Christopher Brady is an individual residing in Omaha, Nebraska. Brady

has sent YouTube dozens of DMCA takedown notices, falsely claiming that material posted by
users to the YouTube service infringes his supposed copyrights. Brady has submitted these notices
as part of a scheme to harass and extort money from the users that he falsely accuses of
infringement. Brady has also threatened to send additional fraudulent notices to YouTube and to
cause the wrongful termination of users’ YouTube accounts unless the users pay him off. And he

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has misused the personal information users have supplied when availing themselves of the
DMCA’s counter notification procedure.
JURISDICTION AND VENUE
3.

This Court has original and exclusive jurisdiction for this matter under 28 U.S.C.

§ 1338 as this is a civil action arising under an Act of Congress governing copyrights, specifically
under 17 U.S.C. § 512(f) of the Copyright Act.
4.

Venue in this judicial district is proper under 28 U.S.C. § 1400(a) as this is a district

in which the defendant resides or may be found.
BACKGROUND
YouTube and its DMCA Processes
5.

YouTube provides an online video service that hosts and makes accessible to the

world hundreds of millions of videos. More than 500 hours of new video are uploaded to the
service every minute.
6.

In accordance with the DMCA, YouTube has registered an agent with the U.S.

Copyright Office to receive notices of alleged infringement from copyright holders.
7.

To trigger the DMCA’s takedown procedure, a copyright holder must send a notice

of alleged infringement to YouTube’s registered agent that includes substantially the following
information:
(i)

A physical or electronic signature of a person authorized to act on behalf of
the owner of an exclusive right that is allegedly infringed;

(ii)

Identification of the copyrighted work claimed to have been infringed, or,
if multiple copyrighted works at a single online site are covered by a single
notification, a representative list of such works at that site;

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(iii)

Identification of the material that is claimed to be infringing and information
reasonably sufficient to permit the service provider to locate the material;

(iv)

Information reasonably sufficient to permit the service provider to contact
the complaining party, such as an address, telephone number, and, if
available, an electronic mail address at which the complaining party may be
contacted;

(v)

A statement that the complaining party has a good faith belief that use of
the material in the manner complained of is not authorized by the copyright
owner, its agent, or the law; and

(vi)

A statement that the information in the notification is accurate, and under
penalty of perjury, that the complaining party is authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.

8.

YouTube facilitates the submission of takedown notices via a webform on its site,

into which a complaining party can easily submit the relevant information. To submit a takedown
notice using the form, parties must affirmatively check a box next to a statement that reads : “I
acknowledge that under Section 512(f) of the DMCA any person who knowingly materially
misrepresents that material or activity is infringing may be subject to liability for damages.”
9.

YouTube receives thousands of DMCA takedown requests each week through its

online webform. It also receives notices by email, postal mail, and facsimile. YouTube invests
millions of dollars each year to process these notices and to promptly remove allegedly infringing
materials from the platform.
10.

YouTube has also developed and maintains a robust policy regarding repeat

infringers on its platform. If a user uploads a video for which YouTube receives a notice of alleged

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infringement, and the user does not counter the accusation by following the procedure set forth in
the DMCA, that user is assessed a “strike” under YouTube’s policy. In general, those who
accumulate more than two strikes have their YouTube accounts terminated. Such terminations are
made pursuant to YouTube’s terms of service agreement with its users, which specifically call out
the potential for termination based on repeated instances or allegations of copyright infringement.
11.

Although users agree that termination of their accounts is a possibility, such

terminations can carry significant consequences for users. Users whose accounts are terminated
are no longer able to upload videos to the service. Videos they have previously uploaded are
removed from public view. Users in the YouTube Partner Program lose the ability to earn revenue
from advertising shown in connection with their videos.
12.

Today, millions of channels from over 90 different countries earn revenue from

their videos—including independent musicians and creators who are, in essence, small local
businesses. In many cases, the revenue generated from their YouTube channel is their principal
source of income. From 2017 to 2018, the number of channels earning more than $100,000 per
year on YouTube is up 40%, and the number of channels earning more than $10,000 annually grew
by more than 35%. For users who have spent months or years building substantial audiences and
earning money through advertising revenues from their videos, the termination of their YouTube
account based on accumulated copyright strikes can have a serious impact.
Abuse of the DMCA Takedown Process
13.

Unscrupulous individuals are increasingly seeking to exploit the DMCA takedown

process for illicit purposes. These individuals know that YouTube promptly removes allegedly
infringing content in response to DMCA takedown notices, that it assesses strikes to the alleged
infringers, and that it terminates the accounts of users who accumulate multiple strikes, often with

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severe consequences to the account holders. With that knowledge, these individuals can use bogus
notices of alleged infringement as weapons.
14.

For example, an individual who objects to the contents of a given video may be

able to cause YouTube to remove that video by submitting a notice of alleged infringement,
without regard to whether the video actually infringes a copyright or whether the individual
actually holds a copyright. While YouTube screens the notices it receives for such machinations,
in many cases, individuals go to great lengths to mask their identities and make bogus notices
appear legitimate.
15.

Equally if not more problematic are situations in which an individual, motivated by

avarice or animus, sends knowingly false notices of alleged infringement in the hopes of causing
YouTube to terminate a user’s account for accumulated strikes. As noted, the consequences to
users from such contrived terminations can be severe. Again, YouTube works hard to prevent this
sort of abuse, but sometimes does not succeed.
16.

Further abuse can arise because of the DMCA’s counter notification process.

Under the DMCA, users who believe that their content was removed because of an improper
takedown notice may ask YouTube to restore the content pending resolution of the question of
infringement. To trigger the counter notification process, a user must supply their name, address
and phone number to YouTube, provide details of the allegedly wrongful takedown notice, and
consent to be sued by the original complainant. In accordance with the DMCA, YouTube forwards
a copy of complete and valid counter notifications to the original complainant. Instead of using
the personal information in a counter notification for purposes of resolving an infringement
dispute, abusive complainants may use it for purposes of harassment.

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Gaming-Related Videos
17.

YouTube users have uploaded an enormous number of videos to the service that

relate to online video game playing. A significant number of these focus in some way on
Minecraft, a popular online adventure game in which users can build or modify the game-playing
environment. Minecraft videos run the gamut from those uploaded by the game developer itself,
to videos featuring users instructing others on the basics of the game, providing advice on
overcoming specific in-game obstacles, or highlighting their own creations, experiences, and
competitions.
18.

Many users develop loyal followings on YouTube through their Minecraft videos.

These users receive feedback from their audience using the comments, live chat, and other
community tools offered by the service, and often their subscribers use these features to
communicate suggestions, requests, praise, or anything else they’d like with the channel operators.
Users that join the YouTube Partner Program can also earn revenue from advertising shown in
connection with their videos.
19.

Three Minecraft-related accounts on YouTube are operated by users with the

account names “Kenzo”, “ObbyRaidz”, and “Cxlvxn.” Kenzo has uploaded more than 300 videos
and has an audience of more than 60,000 YouTube users who have chosen to subscribe to his
channel. ObbyRaidz has uploaded over 100 videos and has over 10,000 subscribers. Cxlvxn has
uploaded approximately 500 videos, and has approximately 20,000 subscribers. Additionally, as
is common among gaming-themed channels, all three of these users frequently livestream videos
without saving them on their channels. All three are also members of the YouTube Partner
Program and are eligible to earn revenue from advertising shown in connection with their videos.

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Defendant Brady’s Extortionate Behavior
20.

Defendant Brady targeted the YouTube accounts of Kenzo and ObbyRaidz, among

others, in an extortionate scheme.
21.

In January 2019, Defendant Brady, using several falsified identities, sent YouTube

multiple notices of alleged copyright infringement pursuant to the DMCA, claiming that two
videos uploaded by Kenzo and two videos uploaded by ObbyRaidz supposedly infringed
copyrights that he owned.
22.

Defendant Brady’s notices of alleged infringement included the various

representations required under the DMCA. Brady identified the specific locations of the videos
posted by Kenzo and ObbyRaidz. He represented that he was the original creator of those videos,
that he held the copyright to them, that the videos posted by Kenzo and ObbyRaidz infringed his
copyrights, and that each of his notices was accurate. And he certified: “UNDER PENALTY OF
PERJURY, I am authorized to act on behalf of the owner of an exclusive right that is allegedly
infringed.” Brady even included links to other copies of the videos in question as “proof” that he,
rather than Kenzo and ObbyRaidz, had created them.
23.

Defendant Brady’s notices of alleged infringement were fraudulent. The videos

posted by Kenzo and ObbyRaidz that Brady identified in his notices did not infringe any copyright
supposedly owned by Brady. Brady knew that at the time he sent the notices. Brady also knew
that did not hold the copyright to the videos he identified as his own in the notices. His
certifications under penalty of perjury in the notices were knowingly false.
24.

Defendant Brady sent the notices of alleged infringement for the improper purpose

of inducing YouTube to remove the identified videos and assess unwarranted copyright strikes on
the Kenzo and ObbyRaidz accounts.

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25.

Upon receipt of Defendant Brady’s notices of alleged infringement, and unaware

of their fraudulent nature, YouTube removed the videos that Brady identified as allegedly
infringing in the notices. YouTube also assessed copyright strikes on the Kenzo and ObbyRaidz
accounts.
26.

On January 29, 2019, shortly after sending YouTube the notices of alleged

infringement, Defendant Brady, masking his identity, sent a message to ObbyRaidz that read:
Hi Obby
We striked you. Our request is $150 PayPal, or $75 [bitcoin]. You
may send the money via goods/services if you do not think we will
cancel or hold up our end of the deal.
Once we receive our payment we will cancel both strikes on your
channel. . . .
If you decide not to pay us, we will file a 3rd strike . . . Well give
you a very short amount of time to make your decision.
27.

Having submitted knowingly false notices of alleged infringement regarding

ObbyRaidz’ videos, Defendant Brady offered to rescind those notices (so as to prompt YouTube
to reinstate the videos and remove the strikes) if ObbyRaidz made an unwarranted payment to him.
28.

Similarly, Defendant Brady, masking his identity, contacted Kenzo and demanded

$300 via Paypal or $200 in bitcoin to rescind the notices of alleged infringement he had sent
regarding Kenzo’s videos. Brady threatened in that message that if Kenzo did not comply, Brady
would send additional notices of alleged infringement, resulting in assessment of additional strikes
and the termination of Kenzo’s account.
29.

Defendant Brady participates in the Minecraft gaming community and appears to

have interacted within the game with various YouTube users including Kenzo. Brady’s

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extortionate and harassing activities described here may, at least in part, be motivated by his
failings in his Minecraft interactions.
30.

YouTube did not learn of Defendant Brady’s fraud and attempted extortion until

the users, Kenzo and ObbyRaidz’ publicized their experiences.

YouTube immediately

investigated the matter, restored the videos in question, and removed the strikes that had been
assessed to their accounts.
Defendant Brady’s Abuse of the Counter Notification Process
31.

Between June 29, 2019 and July 3, 2019, Defendant Brady submitted four more

DMCA takedown notices to YouTube, this time targeting the Cxlvxn channel. Again, these
notices were fraudulent. The videos posted by Cxlvxn did not infringe any copyright supposedly
owned by Brady. Brady knew that at the time he sent the notices. Brady also knew that he did not
hold the copyright to the videos he identified as his own in the takedown notices. His certifications
under penalty of perjury in the notices were knowingly false.
32.

A review of Defendant Brady’s and Cxlvxn’s Twitter accounts from this time

period suggests they were engaged in some sort of online dispute and it appears that Brady sent
the notices of alleged infringement for the improper purpose of inducing Cxlvxn to submit a
counter notification, thereby exposing his home address.
33.

Cxlvxn submitted a counter notification on July 4th, 2019. On July 10th, he

announced via Twitter that he had been the victim of a swatting scheme that day. “Swatting” is the
act of making a bogus call to emergency services in an attempt to bring about the dispatch of a
large number of armed police officers to a particular address.
34.

Given the timing of (i) Defendant Brady’s online dispute with Cxlvxn, (ii) Brady’s

false copyright claims against Cxlvxn; (iii) Brady’s receipt of Cxlvxn’s true home address via

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Cxlvxn’s counter-notification; and (iv) the reported swatting incident, it appears Brady used the
personal information gained through his abuse of the DMCA process to engage in swatting.
35.

Defendant Brady’s false complaints were all submitted using YouTube’s complaint

webform, and thus Brady, with each complaint, checked the box that reads, “I acknowledge that
under Section 512(f) of the DMCA any person who knowingly materially misrepresents that
material or activity is infringing may be subject to liability for damages.”
FIRST CAUSE OF ACTION
Violation of 17 U.S.C. § 512(f)
36.

YouTube realleges each and every allegation set forth in Paragraphs 1 through 35,

inclusive, and incorporates them by reference herein.
37.

On at least two dozen occasions, Defendant Brady sent YouTube notices of alleged

copyright infringement pursuant to the DMCA that contained knowing and material
misrepresentations that videos posted by third parties to the YouTube service infringed his
supposed copyrights.
38.

YouTube, the service provider that received Defendant’s bogus notifications of

alleged infringement, relied upon Defendant’s misrepresentations, removing or disabling access
to the material Defendant falsely claimed to be infringing.
39.

Defendant Brady has gone to great lengths to hide his unlawful conduct using at

least fifteen different online identities, all of which YouTube traced back to him.
40.

Defendant Brady’s abusive behavior has caused YouTube to expend substantial

sums on its investigation in an effort to detect and halt that behavior, and to ensure that its users
do not suffer adverse consequences from it.

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41.

Defendant Brady has demonstrated that his abusive behavior will continue if left

unchecked. In part because of Brady’s constant attempts to mask his identity, YouTube may be
unable to detect and prevent similar misconduct in the future. Injunctive relief is necessary to
prevent irreparable harm to YouTube and to its users.
Wherefore, YouTube prays for relief as set forth below.
PRAYER FOR RELIEF
YouTube prays:
42.

For an award of compensatory damages in an amount to be proven at trial arising

from Defendants’ violation of 17 U.S.C. § 512(f);
43.

For an award of its costs and reasonable attorneys’ fees.

44.

For preliminary and permanent injunctive relief barring Defendant Brady and all

those in active concert with him from submitting notices of alleged infringement to YouTube that
misrepresent that material on the YouTube service is infringing copyrights held or claimed to be
held by Brady or anyone he claims to represent.
45.

For such other, further, and different relief as the Court deems proper under the

circumstances.
DATED: August 19, 2019

Respectfully submitted,
YOUTUBE, L.L.C.,
By: s/ Sam King
Sam King, #19442
Erin R. Robak, #23407
McGILL, GOTSDINER,
WORKMAN & LEPP, P.C., L.L.O.
11404 West Dodge Road, #500
Omaha, NE 68154-2584
[phone]
Fax [phone]
[e-mail]
[e-mail]

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AND
David H. Kramer, Calif. Bar No. 168452
WILSON, SONSINI,
GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304-1050
[phone]
Fax [phone]
[e-mail]
Pro Hac Vice Motion filed
contemporaneously herewith
Attorneys for Plaintiff
YOUTUBE, L.L.C.