Shaffer v. Kavarnos

Background

Heather Shaffer brought the action against Carolyn Kavarnos under Section 512(f) of the Digital Millennium Copyright Act. Shaffer alleged that Kavarnos failed to consider fair use before sending copyright takedown notices against Shaffer’s YouTube videos. Shaffer operated the “Hell to the No” YouTube channel, while Kavarnos operated “MommyRamblingsBlog.”

Kavarnos sent takedown notices to YouTube against seven of Shaffer’s videos in March 2022 and against five more videos in September 2022. Shaffer responded each time with a counter-notification asserting that her use of Kavarnos’s videos was fair use. The court held a bench trial on July 7, 2025, at which Shaffer and Kavarnos testified and the court admitted documentary and video exhibits.

Legal standard

The court explained that Section 512(f) imposes liability when a person knowingly materially misrepresents that material is infringing or that material was removed by mistake or misidentification. Relying on decisions including Lenz v. Universal Music Corp. and cases from the Southern District of New York, the court explained that a copyright holder must consider fair use before sending a takedown notice. But the copyright holder is not liable merely because the infringement belief was ultimately mistaken; a subjective good-faith belief that the material infringed is a complete defense.

The plaintiff had to prove, by a preponderance of the evidence, that Kavarnos did not consider fair use when issuing the 12 notices. The court characterized this as a high bar, particularly when the evidence of the defendant’s state of mind is circumstantial.

Evidence and analysis

Shaffer argued that Kavarnos had a practice of automatically sending takedown notices whenever a video contained any portion of Kavarnos’s videos. Shaffer relied in part on an October 2023 video in which Kavarnos said that she would issue a copyright strike if someone used any amount of her video. The court found that statement suggestive but gave it limited weight because it was made more than a year after the challenged notices and did not establish Kavarnos’s state of mind or policy in March and September 2022.

The court also rejected Shaffer’s argument that Kavarnos was willfully blind to fair use. The court found that Kavarnos’s internet searches and viewed webpages about copyright law, fair use, takedown notices, and YouTube policies indicated that she had taken steps to learn about fair use rather than deliberately avoiding that subject.

Some takedown notices referred to bullying, mocking, stalking, or harassment of Kavarnos and her family. The notices issued before and after Shaffer’s March 2022 counter-notification were also similar. The court found that this evidence could support an inference that Kavarnos’s process had not changed, and it viewed Kavarnos’s failure to sue Shaffer for infringement as evidence weighing against Kavarnos. But the court concluded that the evidence required too many inferences in Shaffer’s favor. The references to non-copyright concerns did not make Kavarnos’s copyright-related reasons unbelievable, and consistency in the reasons for the notices did not establish that she had failed to consider fair use.

The court further found that the notices did not discuss the elements of fair use, but it said that the absence of such discussion was not strong evidence of Kavarnos’s state of mind. The court also rejected Shaffer’s assertion that using only six to 30 seconds of Kavarnos’s videos was plainly fair use, explaining that the relevant question was whether Kavarnos subjectively believed the material infringed her copyright, not whether that belief was objectively correct.

Disposition

The court found the case close, particularly as to the five September 2022 notices, but held that the total evidence fell short of proving by a preponderance that Kavarnos failed to consider fair use when issuing the notices. Judge Kenneth M. Karas therefore dismissed Shaffer’s claims, directed the clerk to enter judgment, and ordered the case closed.