The U.S. Court of Appeals for the Ninth Circuit recently decided that a copyright holder must consider an alleged infringer's fair use before sending a takedown notification, and that its failure to do so raises a triable issue as to whether the copyright holder formed a subjective good-faith belief that the use wasn't authorized by law.
On February 7, 2007, Stephanie Lenz uploaded her "dancing baby" home video on YouTube. The video was a 29-second home movie of her two young babies dancing in her kitchen to the song Let's Go Crazy by Prince.
Universal was Prince's publishing administrator at the time, and it sent a takedown notice to YouTube. YouTube removed the video, and emailed Lenz, notifying her of the removal. Lenz protested the takedown and attempted to restore the video. Universal protested restoration of the video, but its protest made no mention of fair use.
Lenz filed suit against Universal, alleging a claim for misrepresentation under Section 512(f) of the Digital Millennium Copyright Act. Both parties subsequently moved for summary judgment on the claim with Universal arguing that Lenz suffered no damages.
The Ninth Court of Appeals summarized the DMCA takedown procedures, and focused on Section 512(f), which provides: "Any person who knowingly materially misrepresents under this section—(1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages . . . ."
The principal question before the Court was whether 17 U.S.C. § 512(c)(3)(A)(v) requires copyright holders to consider whether the potentially infringing material is a fair use of a copyright under 17 U.S.C. § 107 before issuing a takedown notice. Section 512(c)(3)(A)(v) requires a takedown notification to include a "statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." The parties' dispute was whether fair use is an authorization under the law as contemplated by the statute.
The Court observed that fair use isn't just excused by the law; it is wholly authorized by the law. The statute itself explains that the fair use of a copyrighted work is permissible because it is a non-infringing use. The Court concluded that because 17 U.S.C. § 107 creates 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).