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. As previously discussed on this blog, 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 “ process.”

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.