Copyright Owners Must Consider the Fair Use Doctrine when Issuing DMCA Takedown Notices

Author: Stuart Loh

The plaintiff, Stephanie Lenz, posted a 29-second video clip on YouTube of her children dancing to the Prince song “Let’s Go Crazy.” Universal, the copyright holder of that song, issued a DMCA takedown notice with which YouTube complied. Lenz believed that her otherwise unauthorized use of the song was permissible under the fair use doctrine and issued a counter-notice. YouTube reinstated the video six weeks later. Under 17 U.S.C. § 512(c)(3)(A)(v), DMCA takedown notices must contain a statement that the issuer has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner … or the law.” Lenz sued Universal and claimed that forming such a good faith belief required a consideration of the fair use doctrine. She argued that because Universal had allegedly not given such consideration, it had misrepresented in its takedown notice that it had, in breach of 17 U.S.C. § 512(f).

Universal moved to dismiss the case for failure to state a claim upon which relief may be granted, arguing that takedown notice procedures do not necessitate consideration of fair use and therefore there were no reasonable grounds upon which Lenz could base a claim. The motion was denied.

The court held that as a matter of statutory construction, it is “unambiguous” and accords with legislative purpose behind the DMCA and copyright legislation that use of copyrighted material in a manner “authorized by law” includes fair uses. Therefore, in evaluating whether use of copyrighted material is “not authorized,” a copyright owner must also evaluate whether such use constituted “fair use.”

Universal argued that the law should not force copyright owners to engage in a “fact-intensive” and potentially complicated inquiry to determine whether a use is fair use because that would impede owners’ ability to respond rapidly to potential infringements. However, the court was unconvinced. It noted that Rossi v. Motion Picture Ass’n of America, Inc., 391 F.3d 1000 (9th Cir. 2004) held that a “good faith belief” in the context of § 512(c)(3)(A)(v) encompasses a subjective standard, as opposed to a more stringent objective standard. Therefore, the extent of the relevant inquiry required is limited. A “full investigation … is not required” before a rights owner can form a good faith belief that a use does not constitute fair use.

Interestingly, the court flagged that it had “considerable doubts” that Lenz could, in the main proceedings, prove that Universal acted with “subjective bad faith.” It is unclear from the case the procedure that Universal undertook in deciding whether to issue the takedown notice. If the notice was issued via an automated mechanism without any human input, then perhaps Universal did not turn its mind towards whether fair use was involved, depending on how the relevant mechanism operates. If there was human input, subjective bad faith would probably be harder to prove, but the practical question remains: why, when all factors are considered, did Universal decide to issue a takedown notice at all, given the relatively innocuous use of its copyrighted material? In this instance, Lenz claimed that Universal issued the notice at Prince’s behest and “only to appease Prince” since he is “notorious for his efforts to control all uses of his material on and off the Internet.”