On September 14, 2015, the 9th Circuit issued an opinion that requires copyright holders to take an extra step before sending a Digital Millennium Copyright Act (17 U.S.C. § 512(a) et seq.) takedown notification. According to the 9th Circuit’s opinion in Stephanie Lenz v. Universal Music Corp. et al., copyright holders must now consider the application of the fair use doctrine before sending the notification.
The events giving rise to Lenz began in February 2007, when Stephanie Lenz uploaded a 29-second video to YouTube, showing her toddler dancing to Prince’s Let’s Go Crazy. Prince’s publisher at the time, Universal, sent a takedown notification to YouTube, resulting in and the video’s removal. The notification included a statement that Universal had a “good faith belief” that the use of Let’s Go Crazy was “not authorized” by the law, as required by 17 U.S.C. § 512(c)(3)(A)(v).
Lenz submitted a counter-notification requesting that the video be restored, and the video was restored in July of 2007. Lenz then sued Universal, claiming there was a misrepresentation in Universal’s takedown notification. Specifically, Lenz alleged that Universal did not have a good faith belief that her use of Let’s Go Crazy was “not authorized” by the law. Such misrepresentations violate 17 U.S.C. § 512(f), which creates civil liability for the party requesting the takedown.
The case turned on the question of whether the fair use doctrine affirmatively “authorizes” the use of copyrighted material as contemplated by the DMCA. If fair use equaled authorization, copyright holders would have to check for fair use before sending takedown notifications. If fair use merely excused copyright infringement that would otherwise be unlawful, copyright holders would not need to consider fair use before sending takedown notifications.
Noting that the question had never before been taken up by a federal circuit court, the 9th Circuit held that “[f]air use is not just excused by the law, it is wholly authorized by the law,” and that fair use must be considered before sending a takedown notification. The Court added that the fair use review need not be "searching or intensive," but a copyright holder must do more than “pay lip service” to fair use in a takedown notification.
Lenz will now proceed to trial in the Northern District of California, where Stephanie Lenz may show that Universal did not consider fair use before sending the takedown notification.