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Fair Use Must be Considered Prior to Sending a DMCA Takedown Notice

In Lenz. v. Universal Music Corp., No.13-16106 (9th Cir. Sept. 2015) (Available Here), the Court held that prior to sending a takedown notification under the Digital Millennium Copyright Act (“DMCA”), copyright holders must consider whether the allegedly infringing material constitutes fair use.  The DMCA plainly contemplates fair use as authorized by the law.

    In February 2007, Lenz uploaded a video to YouTube of her two young children dancing to the song Let’s Go Crazy by Prince.  As Prince’s publishing administrator at the time, Universal was responsible for enforcing his copyrights.  As part of this enforcement, Universal searched YouTube videos and notified YouTube that videos should be taken down if they “embodied a Prince composition,” specifically if the song was in a significant portion of the video or was the focus of the video.  None of Universal’s video evaluation guidelines explicitly included consideration of the fair use doctrine.

    On June 5, 2007, YouTube removed Lenz’s video.  On June 7, 2007, Lenz attempted to restore the video by sending a counter-notification.  Universal protested the counter-notification because Lenz failed to acknowledge that her statement was made under the penalty of perjury and reiterated that the video constituted infringement.  Lenz obtained counsel and sent a second counter-notification on June 27, 2007, which resulted in the YouTube’s reinstatement of the video in mid-July.  Lenz then filed this instant action alleging a claim for misrepresentation under 17 U.S.C.§512(f).  The District Court denied the parties’ cross-motions for summary judgment and certified its order for interlocutory appeal.  The 9th Circuit affirmed the lower Court and found that DMCA 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 use was not authorized by law.

    Universal attempted to argue that fair use is an affirmative defense and therefore not “authorized by law,” as required by the statute §512(c)(3)(A)(v).  The 9th Circuit held that for the purposes of the DMCA- fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.  Because 17 U.S.C. § 107 created a type of non-infringing use, fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification under §512(c).

    The 9th Circuit found that a jury must determine whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.  As for Lenz’s willful blindness claim, Lenz failed to meet the threshold showing, i.e. that Universal (1) subjectively believed there was a high probability that the video constituted fair use and (2) took deliberate actions to avoid learning of this fair use.  However, Lenz may seek recovery of nominal damages for an injury incurred as a result of a §512(f) misrepresentation.  The recovery of nominal damages are due to an unquantifiable harm suffered as a result of Universal’s actions.

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