9th Circuit: Fair Use Must Be Weighed Before Issuing DMCA Notice

Sep 14, 2015 11:06 AM PST

SAN FRANCISCO — In a decision of particular interest to adult content and tube site owners, the 9th U.S. Circuit Court of Appeals has found that copyright owners must consider the fair use doctrine before sending Digital Millennium Copyright Act takedown notices to online hosts.

The ruling issued today by a three-judge panel could change the shape and form of fair use and copyright takedown notices after it found that Universal Music Group's view of fair use is flawed.

The panel affirmed a lower court’s decision for summary judgment in an action under the Digital Millennium Copyright Act alleging that Universal violated 17 U.S.C. § 512(f) by misrepresenting in a takedown notification that plaintiff Stephanie Lenz’s home video constituted an infringing use of a portion of a Prince composition.

The appeals court said copyright owners like Universal can only send takedown notices if they’ve come to a good faith conclusion that the targeted upload is not a protected fair use of the copyrighted work.

The appellate ruling “is a pretty big deal for content companies and tube sites alike,” adult industry attorney Marc Randazza of Randazza Legal Group told XBIZ.  

“When you send a DMCA notice, you need to be careful. Fair use is an important exception to copyright infringement — it allows copyright to act as the engine of further expression,” Randazza said.

“If a content producer sends a DMCA notice without considering fair use, licenses or other reasons that the content should not come down, that content producer is going to be pretty upset when all of a sudden the tube site has a claim against them.

“So, to content producers, I say make sure you consider all these issues before sending DMCA notices. To other lawyers, I say to do the same doubly. To tube sites: This can be a way to push back at content producers.”

With the 9th Circuit’s decision, Universal now must face a trial over whether it wrongfully sent a copyright takedown notice over a 29-second YouTube video of Lenz’s toddler dancing to the Prince song "Let's Go Crazy" blaring in the background.

Lenz, who acquired pro bono counsel from the Electronic Frontier Foundation, sued Universal in 2007, arguing that the media giant’s takedown practices violated the DMCA. The litigation was known as the “dancing baby case.”

“All in all, it is a good decision — it just makes people have to play by the rules, respect copyright, but also respect freedom of expression,” Randazza said.

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