A recent decision by the Ninth Circuit Court of Appeals in Lenz v. Universal Music answered a question that it seems nobody has asked until now: Is it necessary to consider fair use before submitting a takedown notice under the Digital Millennium Copyright Act (DMCA)? The answer is an unequivocal yes, though copyright holders need only a subjective good faith belief that the use is not fair.
This dispute arose when Universal Music submitted a DMCA notice to YouTube requesting the removal of Lenz’s home video of her two small children dancing to Prince’s Let’s Go Crazy. As part of its copyright enforcement strategy, an assistant in Universal’s legal department reviewed the video to determine whether Prince’s song was “recognizable, was in a significant portion of the video or was the focus of the video” before submitting the DMCA notice. Lenz believes her use of Prince’s song is clearly a fair use. In response to Universal’s DMCA notice, Lenz filed suit alleging that Universal violated 17 U.S.C. §512(f) by misrepresenting in its notice that it held a good faith belief that Lenz’s home video infringed Universal’s copyrighted work. The Ninth Circuit decision is from an interlocutory appeal of the district court’s denial of the parties’ summary judgement motions regarding the misrepresentation claim.
The DMCA requires a copyright holder’s takedown notice 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 Lenz decision holds that fair use of copyrighted material is a use authorized by the law (specifically, 17 U.S.C. §107). Therefore, a copyright holder must consider fair use before submitting a DMCA notice and conclude in good faith that the particular use being complained of is not a fair use. Due to the wording of the DMCA provision, most lawyers were probably already recommending this step to their copyright-holding clients. But the Ninth Circuit’s opinion clarifies that this recommended practice is in fact a requirement.
Lest copyright holders feel overburdened by this requirement, the Ninth Circuit goes on to clarify that “a copyright holder’s consideration of fair use need not be searching or intensive.” The court even suggests that automated computer programs could do the job. Considering the complexity of fair use and the resources one could expend on an in-depth analysis of every potential infringement, this is good news for copyright holders.
Nevertheless, the court is clear that paying “lip service to the consideration of fair use” by claiming one has “a good faith belief when there is evidence to the contrary” will subject a copyright holder to §512(f) liability. It is now up to the jury to determine whether Universal’s infringement review process is sufficient to form a subjective good faith belief that the use of Let’s Go Crazy in Lenz’s video was not a fair use.
For the rest of us, this decision is a clear warning that copyright holders must consider fair use before submitting DMCA notices if they were not already doing so.