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Fair Use Avoids Takedown

■ Adam E. Szymanski

In Lenz v. Universal Music Corp., Nos. 13-16106 and 16107 (9th Cir. Sept. 14, 2015), a panel of the 9th Circuit held that the Digital Millennium Copyright Act (DMCA) requires a copyright holder to consider fair use before sending a takedown notice to an online service provider, like YouTube® or Google®. Failure to consider fair use, the court determined, raises a triable offense issue as to whether the copyright holder formed a subjective good faith belief that the use was authorized by law.


The claim arose when Universal Music Corp. sent a takedown notice to YouTube to remove a video uploaded by Stephanie Lenz. The 29-second video, entitled “Let’s Go Crazy’ #1”, showed Lenz’s two young children dancing to the song Let’s go Crazy by Prince. YouTube removed the video after notification from Universal and told Lenz on June 5, 2007. Two days later, Lenz sent a counter-notification to YouTube, seeking to reverse the removal of her video. Universal protested and reasserted that the video infringed its copyright. Universal, however, failed to mention fair use. Lenz sued Universal under 17 U.S.C. §512(f) of the DMCA, alleging that Universal misrepresented that her video was infringing its copyright. That section of the DMCA allows an accused infringer to collect damages, including attorneys’ fees.


17 U.S.C. §512(c) sets forth the DMCA’s takedown procedures, which allow service providers to avoid copyright infringement liability for removing allegedly infringing material after receiving a takedown notice. 17 U.S.C. §512(c)(3)(A)(v) requires that a takedown notice include, among other things, a statement of a good faith belief that the allegedly infringing use is “not authorized by the copyright holder, its agent, or the law.” 17 U.S.C. §512(f), under which Lenz sued, provides that anyone who knowingly misrepresents that a material or activity is infringing may be liable.


At issue was whether fair use constitutes an authorization under law—pursuant 17 U.S.C. §512(c)(3)(A)—or, rather, an affirmative defense excusing copyright infringement. Looking to the fair use test codified in 17 U.S.C. §107 as a “limitation on exclusive rights”, the court determined that Congress created a specific type of non-infringing use, thereby authorizing it:

“Although the traditional approach is to view ‘fair use’ as an affirmative defense…it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement.”

Thus, the court held that fair use is an authorization under law for the purposes of 17 U.S.C. §512(c)(3)(A)(v).


The court refused to impose an objective good faith belief requirement to the existing subjective one, as advocated by Lenz, reasoning that Congress could have done so when enacting the DMCA. The court held that the willful blindness doctrine may be used to show that a copyright holder misrepresented a good faith belief regarding fair use. The court ultimately concluded that “[c]opyright holders cannot shirk their duty to consider—in good faith and prior to sending takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by law.”


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