Ninth Circuit to Copyright Holders: DMCA Requires Fair Use Considerations

n an important decision affecting copyright owners, online hosts, and creators of user-generated content, the Ninth Circuit, on Monday, issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content in order to comply with the Digital Millennium Copyright Act (DMCA).  The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees under Section 512(f) of the DMCA for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube.

In 2007 Stephanie Lenz sued Universal Music Group after YouTube removed a 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” in response to a DMCA notice submitted by Universal.  Dubbed the “dancing baby case,” Lenz argued that her video was protected by the doctrine of fair use and that Universal’s takedown request violated Section 512(f) of the DMCA because it knowingly materially misrepresented that the video was infringing.  Under the DMCA, a proper takedown notice must include a statement that the owner or its agent has a “good faith belief” that the use of the copyrighted work is not authorized under the law.

On appeal, the Ninth Circuit held that copyright owners must first ask whether potentially infringing content constitutes a “fair use” before sending a takedown notification pursuant to Section 512(c) the DMCA.  The court explained that fair use must be treated differently than other affirmative defenses because fair use is not merely an exception to an infringement – it is one that that is expressly “authorized by law” under Section 107 of the Copyright Act.

The Ninth Circuit took great pains, however, to qualify the thrust of its ruling, suggesting that it was “mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age.”  In particular, a sender must only form a “subjective good faith belief” that the use is not a fair use or not authorized under the law.  The inquiry “need not be searching or intensive” and, in fact, the Court recognized the role that computer algorithms and automated programs might play in making such fair use determinations and issuing proper takedown requests.  The Ninth Circuit also confirmed that the question of liability under Section 512(f) does not hinge on whether or not the use is indeed defensible: courts are “in no position to dispute the copyright holder’s belief even if [the court] would have reached the opposite conclusion.”  Following the Ninth Circuit’s ruling, content owners should certainly reassess their notice and takedown procedures in order to ensure that their procedures give due consideration to potential fair uses.

The case is Lenz v. Universal Music Corp., Case Nos. 13-16106 and 13-16107, in the United States Court of Appeals for the Ninth Circuit.