Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm News

Ninth Circuit: DMCA Takedown Notice Requires Fair Use Analysis

Author: Fred D. Zemel

Date: October 6, 2015

Key Contacts

Back

For copyright holders, the Digital Millennium Copyright Act’s (DMCA) takedown procedures provide a relatively quick and easy way to address online copyright infringement.

However, according to the Ninth Circuit Court of Appeals, some copyright holders have been abusing the extrajudicial takedown procedures by declining to first evaluate whether the content qualifies as fair use.

The DCMA requires Internet service providers to “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing” upon receiving notice of infringing material being posted on their networks. The notification process has become commonly known as “DMCA notice-and-takedown process.”

Ninth Circuit: DMCA Takedown Notice Requires Fair Use Analysis

DMCA notice-and-takedown

The Ninth Circuit case, Lenz v. Universal Music Corp., revolves around a 29 second home video of two young children dancing to Prince’s song Let’s Go Crazy, which was posted on YouTube by the children’s mother, Stephanie Lenz.  After reviewing the video, Universal Music Corporation sent YouTube a DCMA takedown notice.

After the video was removed, Lenz sued Universal for misrepresentation under the DMCA. She specifically alleged that Universal violated the good faith requirement set forth in Section 512(c)(3)(A)(v). It requires a takedown notification to include a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

The specific question before the Ninth Circuit was whether fair use is an authorized use under the law. Citing that the fair use of a copyrighted work, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright, the appeals court concluded that fair use is “authorized by the law” for purposed of the DCMA.

“We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law,” the opinion states.

With regard to the obligations of copyright holders, the Ninth Circuit provided the following clarification:

To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under §512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to § 512(f) liability.

The Ninth Circuit’s landmark intellectual property decision is only binding on federal courts in in California, Idaho, Montana, Nevada, Oregon, Alaska, and the State of Washington. However, the ruling suggests that courts may begin to hold copyright owners to a higher standard when sending takedown notices under the DMCA.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Feedspot Names Government & Law Blog One of the Top Public Law Blogs post image

Feedspot Names Government & Law Blog One of the Top Public Law Blogs

FeedSpot Recognizes Donald Scarinci’s Government & Law Blog One of the Top 20 Public Law Blogs Little Falls, NJ – May 22, 2025 – Scarinci Hollenbeck, LLC is honored to share that Managing Partner Donald Scarinci’s Government & Law blog has been listed by FeedSpot.com as one of the “20 Best Public Law Blogs and […]

Author: Scarinci Hollenbeck, LLC

Link to post with title - "Feedspot Names Government & Law Blog One of the Top Public Law Blogs"
Scarinci Hollenbeck's Ron Bienstock Speaks at 100th Bomb Group's 2025 Reunion post image

Scarinci Hollenbeck's Ron Bienstock Speaks at 100th Bomb Group's 2025 Reunion

SH Partner and 100th Bomb Group Foundation Legal Counsel Discussed The Nuremberg Trials and the Law May 21, 2025 – Little Falls, NJ – Scarinci & Hollenbeck, LLC is proud to share that partner Ronald S. “Ron” Bienstock recently spoke at the 100th Bomb Group Biennial Reunion, held May 15-18, 2025, in New Orleans. The […]

Author: Ronald S. Bienstock

Link to post with title - "Scarinci Hollenbeck's Ron Bienstock Speaks at 100th Bomb Group's 2025 Reunion"
FeedSpot Names Donald Scarinci’s Constitutional Law Reporter One of the Top 100 Legal Blogs  post image

FeedSpot Names Donald Scarinci’s Constitutional Law Reporter One of the Top 100 Legal Blogs 

Little Falls, NJ – May 1, 2025 – Scarinci Hollenbeck, LLC is proud to share that Managing Partner Donald Scarinci’s Constitutional Law Reporter blog has been listed by FeedSpot.com as one of the “Top 100 Legal Blogs.” No Aspect of the advertisement has been approved by the Supreme Court. Feedspot, a content reader that curates websites of […]

Author: Donald Scarinci

Link to post with title - "FeedSpot Names Donald Scarinci’s Constitutional Law Reporter One of the Top 100 Legal Blogs "
FeedSpot Names Donald Scarinci’s Government & Law Blog One of the Top 80 New Jersey Blogs  post image

FeedSpot Names Donald Scarinci’s Government & Law Blog One of the Top 80 New Jersey Blogs 

Little Falls, NJ – May 1, 2025 – Scarinci Hollenbeck, LLC is proud to share that Managing Partner Donald Scarinci’s Government & Law blog has been listed by FeedSpot.com as one of the “80 Best New Jersey Blogs and Websites in 2025.” *No Aspect of the advertisement has been approved by the Supreme Court of New […]

Author: Donald Scarinci

Link to post with title - "FeedSpot Names Donald Scarinci’s Government & Law Blog One of the Top 80 New Jersey Blogs "
Nathanya G. Simon Named to ROI-NJ Influencers "Women in Business" 2025 List post image

Nathanya G. Simon Named to ROI-NJ Influencers "Women in Business" 2025 List

Scarinci Hollenbeck Partner Nathanya G. Simon named by ROI-NJ to the “ROI Influencers: Women in Business” list for fourth consecutive year Scarinci Hollenbeck Partner Nathanya G. Simon has been named by ROI-NJ to the “ROI Influencers: Women in Business” list for 2025. After four decades of practice, Nathanya’s pioneering influence in the field of special […]

Author: Nathanya G. Simon

Link to post with title - "Nathanya G. Simon Named to ROI-NJ Influencers "Women in Business" 2025 List"
SH Partner Angela Turiano Named Director of Legislative Affairs for SHRM Princeton post image

SH Partner Angela Turiano Named Director of Legislative Affairs for SHRM Princeton

Congratulations Angela Turiano on appointment as Director of Legislative Affairs for SHRM Princeton April 17, 2025 – Little Falls, NJ – Scarinci & Hollenbeck, LLC congratulates Partner Angela Turiano on her appointment as Director of Legislative Affairs for SHRM Princeton. Along with serving as a member of SHRM Princeton’s leadership team, Angela will monitor pending legislative, regulatory, […]

Author: Angela A. Turiano

Link to post with title - "SH Partner Angela Turiano Named Director of Legislative Affairs for SHRM Princeton"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!