You may have heard about Stephanie Lenz’s Digital Millennium Copyright Act (“DMCA”) suit against Universal Music Corp. Just to recap, Stephanie is the lady that posted that really cute YouTube video of her son dancing to Prince’s song, “Let’s Go Crazy.” Stephanie alleged that Universal made a misrepresentation when it claimed that her 29–second home video’s use of the song was an infringing use.
According to the Ninth Circuit Court of Appeals:
Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
While the Ninth Circuit’s September 14 decision addressed the parties cross-motions for summary judgement, the Court did make some proclamations about Copyright law and takedown notices under the DMCA:
Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it.
The Ninth Circuit Court of Appeals affirmed the district court’s order denying the parties’ cross-motions for summary judgment. A trial should follow soon. If you have the time and inclination, Judge Smith’s dissent (in part) makes for interesting reading.