9th Circuit Holds DMCA Take Down
Notices Must Account for Fair Use
In 2007, Stephanie Lenz posted the video below (“Lets Go Crazy #1”) of her son dancing to Prince’s “Lets Go Crazy”.
Universal filed a DMCA take down request. After Lenz filed a counter-notification, the video was restored over Universal’s objections. Working with the Electronic Frontier Foundation, Lenz filed what ultimately became a misrepresentation lawsuit against Universal. On appeal, the Ninth Circuit stressed:
[F]or the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that 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).
. . .To be clear, 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). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.
The case now goes to trial.