PlayerAuctions runs an online marketplace for virtual items. Take-Two makes the Grand Theft Auto (GTA) videogames. Take-Two sent a takedown notice to PlayerAuctions targeting user-uploaded item listings. PlayerAuctions pushed back, saying that the users’ listings don’t contain any GTA copyrighted material. Nevertheless, “PlayerAuctions complied with the Takedown Notice and removed the listings Take-Two had identified, resulting in harm to PlayerAuctions’s business and reputation.”
Take-Two sued PlayerAuctions for IP infringement. Some background on the lawsuit. PlayerAuctions brought a 512(f) counterclaim. The court rejects Take-Two’s motion to dismiss the 512(f) counterclaim:
PlayerAuctions alleges that Take-Two lacked a “subjective good faith belief” that the identified listings infringed Take-Two’s copyrights because Take-Two failed to consider whether the listings qualified as fair use prior to sending the Takedown Notice. The Takedown Notice does not reference fair use or indicate that Take-Two considered the doctrine. Further, PlayerAuctions alleges that Take-Two has previously considered material similar to that in the listings to be fair use. Thus, PlayerAuctions asserts, had Take-Two considered fair use, it would have recognized that many of the identified listings constituted fair use.
These allegations, taken as true at the pleading stage, are sufficient to establish that Take-Two did not consider fair use before sending the Takedown Notice. If Take-Two did not consider fair use, it could not possibly have formed a good faith belief that the listings were unauthorized by the law, because “fair use is ‘authorized by the law.’ ” Lenz, 815 F.3d at 1153. Thus, PlayerAuctions plausibly alleges that Take-Two lacked a subjective good faith belief that the listings were infringing before sending the Takedown Notice, which is adequate to state a claim under § 512(f).
It’s a nonsequitur for the court to treat the absence of a fair use reference in the takedown notice as prima facie evidence of subjective bad-faith. DMCA’s 512(c)(3) does not require a takedown notice sender to reference anything about fair use, and it would be completely consistent with the governing Rossi caselaw for a takedown notice sender to consider fair use privately and not mention fair use in its takedown notice. Perhaps the court will reach this point at summary judgment, after Take-Two has a chance to explain its decisions, including what it did to evaluate fair use in these circumstances.
For now, the obvious implication is that if you want to reduce the chances of a 512(f) plaintiff surviving a motion to dismiss based on Lenz, the takedown notice should include a statement that the sender considered fair use for the targeted items and concluded that it did not apply.
Evaluation of fair use never happens before sending robo-takedown notices, so this ruling seems to suggest that the robo-notices are 512(f)-bait for that reason. Given that courts have tolerated robo-notices for many years, this court’s approach is either an outlier or a warning sign that courts are becoming intolerant of robo-notices.
The kicker is that the court has already said that Take-Two’s claims against PlayerAuctions have survived a motion to dismiss, so Take-Two suggested that ruling indicates its claims are valid enough to demonstrate Take-Two’s subjective good faith. The court responds “meh,” pointing to the pleading burdens for a motion to dismiss.
Case Citation: Take-Two Interactive Software, Inc. v. PlayerAuctions, Inc., 2026 WL 856666 (C.D. Cal. March 26, 2026). The initial complaint.
Prior Posts on Section 512(f)
* Does 512(f) Apply Differently to Counternotices Compared to Takedown Notices?
* It Takes a Lot for 512(f) Claims to Survive a Motion to Dismiss–Cordova v. Huneault
* Copyright Takedown Notices May Be Affecting Your Washing Machine Options–Ningbo Yituo v. GoPlus
* 512(f) Claim Sent to Trial (Which Didn’t Happen)–Leszczynski v. Kitchen Cube
* 512(f) Doesn’t Support Preliminary Injunction–BViral v. TheSoul
* In 512(f), the “F” Stands for “Futility”–Shaffer v. Kavarnos
* Does Anyone Still Care About NFTs? (Yuga Labs, LLC v. Ripps) — Guest Blog Post
* Viral DRM Awarded Damages for Its 512(f) Claims, But At What Cost?
* Big YouTube Channel Gets TRO Against Being Targeted by DMCA Copyright Takedown Notices–Invisible Narratives v. Next Level Apps
* The Competition Between Temu and Shein Moves Into a Courtroom–Whaleco v. Shein
* Copyright Battles Over City Council Videos
* Record Label Sends Bogus Takedown Notice, Defeats 512(f) Claim Anyway–White v. UMG
* Plaintiffs Make Some Progress in 512(f) Cases
* 512(f) Doesn’t Restrict Competitive Gaming of Search Results–Source Capital v. Barrett Financial
* 512(f) Once Again Ensnared in an Employment Ownership Dispute–Shande v. Zoox
* Surprise! Another 512(f) Claim Fails–Bored Ape Yacht Club v. Ripps
* You’re a Fool if You Think You Can Win a 512(f) Case–Security Police and Fire Professionals v. Maritas
* 512(f) Plaintiff Must Pay $91k to the Defense–Digital Marketing v. McCandless
* Anti-Circumvention Takedowns Aren’t Covered by 512(f)–Yout v. RIAA
* 11th Circuit UPHOLDS a 512(f) Plaintiff Win on Appeal–Alper Automotive v. Day to Day Imports
* Court Mistakenly Thinks Copyright Owners Have a Duty to Police Infringement–Sunny Factory v. Chen
* Another 512(f) Claim Fails–Moonbug v. Babybus
* A 512(f) Plaintiff Wins at Trial! 
–Alper Automotive v. Day to Day Imports
* Satirical Depiction in YouTube Video Gets Rough Treatment in Court
* 512(f) Preempts Tortious Interference Claim–Copy Me That v. This Old Gal
* 512(f) Claim Against Robo-Notice Sender Can Proceed–Enttech v. Okularity
* Copyright Plaintiffs Can’t Figure Out What Copyrights They Own, Court Says ¯\_(ツ)_/¯
* A 512(f) Case Leads to a Rare Damages Award (on a Default Judgment)–California Beach v. Du
* 512(f) Claim Survives Motion to Dismiss–Brandyn Love v. Nuclear Blast America
* 512(f) Claim Fails in the 11th Circuit–Johnson v. New Destiny Christian Center
* Court Orders Rightsowner to Withdraw DMCA Takedown Notices Sent to Amazon–Beyond Blond v. Heldman
* Another 512(f) Claim Fails–Ningbo Mizhihe v Doe
* Video Excerpts Qualify as Fair Use (and Another 512(f) Claim Fails)–Hughes v. Benjamin
* How Have Section 512(f) Cases Fared Since 2017? (Spoiler: Not Well)
* Another Section 512(f) Case Fails–ISE v. Longarzo
* Another 512(f) Case Fails–Handshoe v. Perret
* A DMCA Section 512(f) Case Survives Dismissal–ISE v. Longarzo
* DMCA’s Unhelpful 512(f) Preempts Helpful State Law Claims–Stevens v. Vodka and Milk
* Section 512(f) Complaint Survives Motion to Dismiss–Johnson v. New Destiny Church
* ‘Reaction’ Video Protected By Fair Use–Hosseinzadeh v. Klein
* 9th Circuit Sides With Fair Use in Dancing Baby Takedown Case–Lenz v. Universal
* Two 512(f) Rulings Where The Litigants Dispute Copyright Ownership
* It Takes a Default Judgment to Win a 17 USC 512(f) Case–Automattic v. Steiner
* Vague Takedown Notice Targeting Facebook Page Results in Possible Liability–CrossFit v. Alvies
* Another 512(f) Claim Fails–Tuteur v. Crosley-Corcoran
* 17 USC 512(f) Is Dead–Lenz v. Universal Music
* 512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom
* Updates on Transborder Copyright Enforcement Over “Grandma Got Run Over by a Reindeer”–Shropshire v. Canning
* 17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices–Amaretto v. Ozimals
* 17 USC 512(f) Claim Against “Twilight” Studio Survives Motion to Dismiss–Smith v. Summit Entertainment
* Cease & Desist Letter to iTunes Isn’t Covered by 17 USC 512(f)–Red Rock v. UMG
* Copyright Takedown Notice Isn’t Actionable Unless There’s an Actual Takedown–Amaretto v. Ozimals
* Second Life Ordered to Stop Honoring a Copyright Owner’s Takedown Notices–Amaretto Ranch Breedables v. Ozimals
* Another Copyright Owner Sent a Defective Takedown Notice and Faced 512(f) Liability–Rosen v. HSI
* Furniture Retailer Enjoined from Sending eBay VeRO Notices–Design Furnishings v. Zen Path
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver — Lenz v. Universal
* YouTube Uploader Can’t Sue Sender of Mistaken Takedown Notice–Cabell v. Zimmerman
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice–Lenz v. Universal
* 512(f) Claim Dismissed on Jurisdictional Grounds–Project DoD v. Federici
* Biosafe-One v. Hawks Dismissed
* Michael Savage Takedown Letter Might Violate 512(f)–Brave New Media v. Weiner
* Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal
* Copyright Owner Enjoined from Sending DMCA Takedown Notices–Biosafe-One v. Hawks
* New(ish) Report on 512 Takedown Notices
* Can 512(f) Support an Injunction? Novotny v. Chapman
* Allegedly Wrong VeRO Notice of Claimed Infringement Not Actionable–Dudnikov v. MGA Entertainment
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