[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14236

Non-Argument Calendar

____________________

ALPER AUTOMOTIVE, INC., 

A Florida Corporation 

d.b.a. AA Ignition, 

Plaintiff-Counter Defendant-Appellee,

versus

DAY TO DAY IMPORTS, INC., 

A California Corporation,

Defendant-Counter Claimant-Appellant.

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____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:18-cv-81753-BER

____________________

Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:

Defendant-Appellant Day To Day Imports, Inc. (DDI) appeals the district court’s order, after a bench trial, that found DDI 

violated Section 512(f) of the Digital Millennium Copyright Act

(DMCA). After careful review, we affirm. 

I. BACKGROUND 

The basis for this copyright litigation is a set of replacement 

stickers for the dashboard climate controls for certain General Motors (GM) vehicles. In 2011, Harold Walters incorporated original 

artwork behind the set of those replacement stickers. Walters began selling his stickers through online markets and submitted his 

design to the U.S. Copyright Office in 2017.1 The U.S. Copyright 

Office granted a copyright for Walters’s design. 

In 2016, DDI began selling a similar set of climate control 

stickers but without Walters’s artwork through online markets, 

1 In his application, Walters put 2017 as the date of original design, but that 

was amended to 2011. 

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including Amazon. Walters submitted a Takedown Notice to Amazon. Under the DMCA, a person who believes his copyright is 

being infringed can notify the online market in writing and must 

identify the allegedly infringing listing with particularity. 17 U.S.C. 

§ 512(c). DDI received notification that Amazon had taken down 

the listing due to copyright infringement. 

DDI, through counsel, reached out to Walters to address

how DDI allegedly infringed Walters’s copyright. Walters explained to DDI that he had a valid copyright and provided DDI 

with his copyright registration numbers. But Walters did not provide DDI with a copy of his design nor did DDI request a copy of 

the design from the U.S. Copyright Office. After negotiating with 

Walters, DDI paid Walters to license the copyrights and allowed 

Walters to continue to sell his stickers on eBay while DDI would 

sell the licensed stickers on Amazon. Walters permitted DDI to 

submit a Takedown Notice to Amazon. 

In April 2018, Plaintiff-Appellee Alper Automotive, Inc. 

(Alper) began selling a sticker that contained the same dashboard 

climate controls as DDI and Walters but also included another decal. On May 8, 2018, DDI’s counsel sent a Takedown Notice to 

Amazon that identified Alper’s sticker as infringing DDI’s license of 

Walters’s copyright. At first, Amazon did not remove the listing 

until DDI sent another Takedown Notice on May 15, 2018. Amazon took down Alper’s listing on May 17, 2018.

On May 17, 2018, Alper received notice that DDI had reported the copyright infringement and that Amazon had removed 

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Alper’s listing. Alper’s counsel contacted DDI’s counsel to address 

the alleged copyright infringement. Throughout the discussion, 

DDI explained that it did not have a copy of Walters’s design submitted to the U.S. Copyright Office but had seen the work and 

claimed Alper’s stickers were identical. Ultimately, Alper and DDI 

did not resolve the alleged copyright infringement.

On June 7, 2018, Alper emailed Amazon and disputed the 

Takedown Notice, specifically that the work was not identical to 

DDI’s work nor was DDI’s work entitled to copyright protection 

because it was standard dashboard icons. Amazon reinstated 

Alper’s listing on June 22, 2018. This cycle of DDI sending a 

Takedown Notice and Alper disputing that notice occurred with 

DDI’s August 2 and November 1 Takedown Notices.2

On November 19, 2018, DDI again sent a Takedown Notice 

that again included Alper’s reinstated listing. On November 29, 

2018, Amazon removed Alper’s listing, and Alper immediately appealed. Alper’s counsel contacted DDI’s counsel at this time to discuss the changes Alper made to its sticker and to hopefully settle. 

Amazon reinstated Alper’s listing on December 2, 2018. On December 5, 2018, after discussing the issue with other attorneys and 

Amazon Legal, Alper’s counsel rescinded the settlement proposal. 

Alper’s counsel explained that Alper’s listing does not infringe on 

2 These Takedown Notices also included listings from other companies that 

were not reinstated by Amazon.

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DDI’s copyright and that if DDI continued to file invalid Takedown 

Notices, Alper would take legal action. 

On December 23, 2018, DDI’s counsel received an email 

from Amazon stating it received DDI’s reports of infringement and 

had acted against the infringers, including Alper. Alper appealed 

and Amazon reinstated Alper’s listing.3

On December 27, 2018, Alper sued DDI in the Southern District of Florida for five claims, including 17 U.S.C. § 512(f) about

DDI’s submitted Takedown Notices. DDI counterclaimed for copyright infringement and joined Walters to the suit. Relevant to this 

appeal, the district court conducted a three-day bench trial on 

Alper’s Section 512(f) claim only.4

After the bench trial, the district court entered its Findings 

of Facts and Conclusions of Law. Ultimately, the district court 

found that the May, August, and November 1 Takedown Notices 

did not violate Section 512(f). However, the district court found: 

12. When it submitted the November 19 DMCA 

Takedown Notice, Defendant [DDI] had a subjective 

3 As the district court noted, the December emails were a technical glitch by 

Amazon but would not have happened but for the November 19, 2018 

Takedown Notice. 

4 Alper’s remaining claims and DDI’s counterclaims were handled either by 

settlement or through summary judgment. 

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belief that Plaintiff’s [Alper’s] Sticker Sheet infringed 

the Subject Design.

13. That subjective belief was the result of willful 

blindness.

14. By this point, in addition to the information 

known to Defendant after the May DMCA 

Takedown Notice, Defendant knew that Plaintiff’s 

Amazon listing had been reinstated three times. Defendant had not tried to find out why Amazon kept

reinstating Plaintiff’s listing. Defendant had not obtained the Deposit Design from the Copyright Office.

And, the November 19 DMCA Takedown Notice 

acknowledged that many of the ASINs listed in the 

Notice were ones that had already been taken down 

and are “back up somehow.” All of these facts placed 

Defendant on actual notice that it was highly likely 

that, in fact, Plaintiff’s Sticker Sheet was not infringing the Subject Design. It also put Defendant on 

acute notice that there was a problem with its copyright infringement claim. Therefore, Defendant’s decision to not pursue information that would have 

helped confirm whether Plaintiff was infringing on a 

protected copyright constituted willful blindness.

15. I further find that by November 19, 2018, Defendant had a motive not to investigate further – filing 

DMCA Takedown Notices was less expensive and 

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more immediate than pursuing a claim for copyright 

infringement on the merits. In making this finding I 

draw an adverse inference from Defendant’s failure 

to initiate litigation against Plaintiff. In a May correspondence, Mr. Kaufman said, “We are a few weeks 

away from filing suit against all the infringers.” Yet, 

as of the November 19, 2018, seven months later, Defendant had not filed suit against Plaintiff, even 

though Plaintiff was persisting in having its Amazon 

listing reinstated. See Online Policy Group v. 

Diebold, Inc., 337 F. Supp. 2d 1195, 1204–05 (N.D. 

Cal. 2004) (“The fact that Diebold never actually 

brought suit against any alleged infringer suggests 

strongly that Diebold sought to use the DMCA's safe 

harbor provisions—which were designed to protect 

[Internet Service Providers], not copyright holders—

as a sword to suppress publication of embarrassing 

content rather than as a shield to protect its intellectual property.”). I find that by November 19, 2018, 

Defendant was using the DMCA Takedown Notices 

to suppress a market competitor rather than to enforce a legitimate good faith claim of copyright infringement.

16. The November 19, 2018, DMCA Takedown Notice violated § 512(f). I find by a preponderance of the 

evidence that Defendant knowingly and materially 

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misrepresented that Plaintiff was infringing a valid 

copyright, that Amazon relied on that misrepresentation, and that Plaintiff was injured as a result of its listing being down from November 29, 2018 to December 2, 2018.

The district court awarded Alper $351.95 in lost profits and $45 for 

Alper’s counsel’s time in getting the Amazon listing reinstated. 

DDI timely appealed. 

II. STANDARD OF REVIEW 

“On appeal of a district court order from a bench trial, we 

review the court’s conclusions of law de novo and its findings of 

fact for clear error.” HGI Assocs., Inc. v. Wetmore Printing Co., 

427 F.3d 867, 873 (11th Cir. 2005). “We will not find clear error 

unless our review of the record leaves us ‘with the definite and firm 

conviction that a mistake has been committed.’” Coggin v. 

Comm’r of Internal Revenue, 71 F.3d 855, 860 (11th Cir. 1996) 

(quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)).

III. ANALYSIS 

DDI argues the district court erred in two ways. First, the 

district court erred in using the willful blindness standard to support DDI’s liability for a knowing misrepresentation under 17 

U.S.C. § 512(f). Second, even if the willful blindness standard applies, the district court clearly erred in finding DDI was willfully 

blind. We will address each argument in turn. 

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A.

DDI argues that it is unprecedented for the district court to 

use the willful blindness standard as this court has not addressed 

the knowledge requirement under Section 512(f). Although DDI 

is correct that this court has not addressed the willful blindness 

standard under Section 512(f), the parties stipulated to this standard 

as the law that the judge would use during the bench trial. Specifically, in the Amended Joint Pretrial Stipulation, the parties agreed 

that “[w]illful blindness serves as a substitute for actual knowledge 

for a DMCA misrepresentation claim.” DDI also discussed the willful blindness standard to the district court in its opening and closing 

statements. DDI further argued in its closing that Alper failed to 

meet the requirements for willful blindness. 

Although DDI argues that the district court should have not 

used the willful blindness standard, it does not argue that holding 

DDI to that standard is manifest injustice. As a general rule, parties 

are bound by stipulations made before trial. G.I.C. Corp., Inc. v. 

United States, 121 F.3d 1447, 1449–50 (11th Cir. 1997). “Before 

agreeing to a stipulation, a litigant has a duty to satisfy himself concerning the matters which his opponent proposes for stipulation. 

Down v. Am. Employers Inc. Co., 423 F.2d 1160, 1164 (5th Cir. 

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1970).5 But a court may disregard issues of law stipulated by the 

parties to grant a party relief from that stipulation to prevent manifest injustice. Equitable Life Assurance Soc’y v. MacGill, 551 F.2d 

978, 983–84 (5th Cir. 1977). 

Considering DDI stipulated to the use of willful blindness as 

a substitute for actual knowledge before trial and then repeatedly 

discussed that standard at the trial, we will hold DDI to that stipulation. Nor was it manifestly unjust to use a willful blindness standard because we have adopted that doctrine to show knowledge in 

other intellectual property cases. See Luxottica Grp., S.P.A. v. Airport Mini Mall, LLC, 932 F.3d 1303, 1312 (11th Cir. 2019) (applying 

willful blindness in a contributory trademark infringement action); 

see also Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 768 

(2011) (applying willful blindness in induced patent infringement 

case).

B.

DDI argues that the district court clearly erred in finding that 

DDI was willfully blind for two reasons. First, DDI argues that the 

district court’s order now requires any party, including DDI, to 

contact the U.S. Copyright Office to determine whether there is a 

valid copyright rather than go on the subjective belief of a licensor, 

in this case Walters. DDI misrepresents what the district court 

5 We are bound by decisions of the former Fifth Circuit handed down before 

October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 

1981) (en banc).

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order stated. The district court order did not hold that DDI, or 

future parties, must contact the U.S. Copyright Office before filing 

a Takedown Notice under the DMCA. Rather, the district court 

explained that considering the many times Alper’s listing was taken 

down and put back up that Alper’s sticker likely did not infringe on

DDI’s design. As a result, DDI should have pursued information 

to determine whether Alper was actually infringing a protected 

copyright. One way that DDI could have done so was to contact 

the U.S. Copyright Office, but DDI could have also reached back 

out to Walters to get as much information as it could have from his 

copyright application, including Walters’s submitted designs. 

Next, DDI argues that the district court erred in applying the 

willful blindness standard. In order to show willful blindness, a 

party must establish two factors: “(1) the defendant must subjectively believe that there is a high probability that a fact exists and 

(2) the defendant must take deliberate actions to avoid learning of 

that fact.” Glob.-Tech Appliances, 563 U.S. at 769. 

Looking at the first factor, the district court explained that 

by November 19, DDI was placed on actual notice that Alper’s 

sticker likely did not infringe on DDI’s sticker. Before making this 

finding, the district court, in great detail, explained the many 

Takedown Notices, Alper’s appeals of those notices, and ultimately 

Amazon’s reinstatement of Alper’s listings. The district court also 

noted that many of the other listings that DDI included in its 

Takedown Notices were not being reinstated on Amazon, which 

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increases the probability that DDI knew there was likely no infringement by Alper. 

After months of sending Takedown Notices, only for Alper’s 

listings to be reinstated, DDI should have pursued information to 

determine why Amazon kept allowing reinstatement. Further, in 

one email, Amazon explained that it would not act on the 

Takedown Notice because “the notices [DDI] reported to Amazon 

are invalid and/or inaccurate.” These facts allow the inference that 

DDI was intentionally insulating itself from knowledge about possible the likelihood that Alper was not infringing Walters’s copyrights. See United States v. Dean, 487 F.3d 840, 851 (11th Cir. 2007). 

Therefore, there is substantial evidence to support the district 

court’s finding of willful blindness.

IV. CONCLUSION 

Thus, the district court’s comprehensive order is affirmed. 

The district court did not err in using the willful blindness standard 

as a substitute for actual knowledge in a misrepresentation claim 

under 7 U.S.C. §512(f) and DDI has not shown manifest injustice 

because DDI stipulated to the standard before trial and then made 

arguments at trial using that standard. And the district court did not 

clearly err in determining that DDI’s conduct for the November 18, 

2018 Takedown Notice was willfully blind. 

AFFIRMED. 

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