The so-called “notice-and-takedown” procedure in the Digital Millennium Copyright Act of 1998 (the “DMCA”) – previously referenced here – provides copyright holders with the means to remove allegedly infringing material from websites. The copyright holder provides the notice, and the website operator does the taking down. The notice, to be effective, must contain, among other things, a statement from the copyright holder that it has a “good faith belief” that infringement of its work is actually taking place. 17 U.S.C. § 512(c)(3)(A). In a recent California case, Lenz v. Universal Music Corporation, a federal court held that in order to validly claim such a “good faith belief” the copyright holder must consider whether the use of the material constitutes “fair use”. (Fair use is the doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the copyright holder, such as use for scholarship, review, news reporting, and certain non-commercial, transformative uses).
The Lenz case involved a video posted on YouTube of a baby dancing to Prince’s song “Let’s Go Crazy”. The video was posted by the baby’s mother. Universal, owner of the Prince song, sent a DMCA takedown notice to YouTube. YouTube complied. Momma Lentz sent a counter-notice, claiming that the video was “fair use” and sued Universal claiming the company failed to consider fair use before sending its notice, as it was required to do. The court agreed.
Under Lenz, copyright holders must now consider fair use before sending a DMCA takedown notice. However, the court in Lenz noted that, while fair use must be considered, the copyright holder need not reach the right conclusion. The court further noted that the consideration given to the fair use question need not be extensive. It is enough then that the copyright holder demonstrate only that fair use was considered in order to avoid liability under Lenz.
–Matt
