Ninth Circuit: Copyright Holders Must Consider Fair Use Before Sending DMCA Takedown Notices

The Ninth Circuit held last week in Lenz v. Universal Music Corp. (the “dancing baby” case) that a copyright holder must consider fair use before sending a takedown notice under the Digital Millennium Copyright Act (DMCA). Without first considering fair use, the copyright holder cannot have formed the required subjective good faith belief that the use was infringing.

Stephanie Lenz and the Electronic Frontier Foundation sued Universal Music Group in 2007 after Universal sent Lenz a takedown notice for a 29-second video she posted to YouTube of her son dancing to Prince’s “Let’s Go Crazy.” Lenz claimed the video was fair use and brought suit against Universal under Section 512(f) of the DMCA for knowingly misrepresenting in its takedown notice that her use was infringing. The district court denied cross motions for summary judgment.

Affirming, the Ninth Circuit held that copyright holders have a duty to consider in good faith, before sending a takedown notice, whether material alleged to be infringing constitutes fair use. Section 512(f) imposes liability on persons who knowingly materially misrepresent that content is infringing, and a copyright owner who does not consider fair use cannot have formed a good faith belief of infringement. The court explained, “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).” To “consider” fair use, the copyright holder need only form a subjective good faith belief; the court is “in no position to dispute the copyright holder’s belief even if [the court] would have reached the opposite conclusion.”

Compliance with this obligation does not require the copyright holder’s assessment of fair use to be “searching or intensive.” Mindful of the “pressing crush of voluminous infringing content that copyright holders face in a digital age,” the court noted that the use of computer algorithms appears to be a “valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements.” But Universal did not argue that it had used any computer algorithm, so the court did not definitively rule on this issue, saving it for a later date.

Finally, the Ninth Circuit held that Lenz could seek nominal damages under her Section 512(f) misrepresentation claim. The scope of her recoverable damages, costs, and attorneys’ fees are left for the jury to decide.