DMCA Takedowns Must Consider Fair Use – Automation Optional

The California Federal Appeals Court, by amending its earlier decision, dropped its language regarding wether an automated program can determine fair use of third-party uploaded content.  In Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. March 17, 2016) (Available Here), The United States Court of Appeals for the Ninth Circuit amended its previous opinion by excising several paragraphs that a copyright holder’s consideration of fair use need not be extensive and that implied that an automated program could meet the requirements of the fair use analysis.  The dissent was also altered to present an even stronger argument that defendant Universal had not met its obligation to consider fair use.  Both parties petitions for rehearing were denied.

The majority of the earlier opinion remained the same.  The Court stood by its original opinion that copyright holders, who demand a takedown of third-party supplied content to a website, must consider whether the use on the website is lawful fair use before issuing a takedown notice.  Further, the earlier opinion stated that there was a triable issue as to whether the defendant copyright holders formed a subjective good faith belief that plaintiff’s use was not authorized by law.  However, the plaintiff could not proceed to trial under a willful blindness theory because she did not show that the defendants subjectively believed that there was a high probability that the video constituted fair use.

The dissent found that Universal’s reviewers did not consider fair use before sending a takedown notice.  Universal did not even train its employees to consider fair use.  Therefore, there is no disputed issue of fact, Universal did not consider fair use before issuing a take down notice.  The dissent also found Universal’s takedown notice a knowing misrepresentation.  Universal knew it had not considered the fair use factors.  Thus, the dissent believes that Universal’s actions were insufficient as a matter of law to form a subjective good faith belief that plaintiff’s video was fair use.

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