Court rules that copyright holders must consider fair use before issuing DMCA takedown notice

The Digital Millenium Copyright Act (“DMCA”) contains several provisions that protect copyright holders with tools to guard against copyright infringement that occurs on the Internet.  One of the tools is a “takedown notice”, in which a copyright holder can demand that an Internet service provider remove copyrighted material from a website.  The ISP may then avoid liability for copyright infringement by removing the material and allowing the person who uploaded the material the opportunity to issue a counter-notification.  If (as typically happens) the ISP does not receive a counter-notification, the infringing material then remains off of the website.

In an opinion issued by this week by the U.S. District Court for the Northern District of California, the Court held that before issuing a takedown notice, copyright holders are required to consider whether the website is making “fair use” of the material.  In the case, Lenz v. Universal Corp., the court considered a YouTube posting consisting of a mother’s video of her children dancing to approximately 29 seconds of Prince’s “Let’s Go Crazy.”  Universal Music issued a takedown notice to YouTube, and YouTube complied and notified the mother.  The mother then sued Universal, reuqesting a declaratory judgment of non-infringement and arguing that Universal did not comply with the DMCA’s takedown requirements because Universal failed to consider whether the video was a “fair use” of the song.

In its opinion, the court held:  “An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine … is sufficient to state a misrepresentation claim pursuant to Section 5.12(f) of the DMCA.”  The court further stated that “[t]he DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(f) without doing so.  A consideration of the fair use doctrine is simply part of that initial review.”

The opinion did not address whether or not the video was in fact a fair use of a copyright.  Instead, it merely ruled that the mother’s claim would survive Universal’s motion to dismiss.  For a complete list of the requirements of a DMCA takedown notice, see Section 512(c)(3) of the Copyright Act, available here.  The elements of the fair use doctrine are set out in Section 107 of the Copyright Act.

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