YouTube users rejoice: The Ninth Circuit in a September 14 decision gave copyright holders something additional to consider before sending Digital Millennium Copyright Act takedown notices, holding that they must weigh fair use before sending takedown notices to hosting websites.

In this case, Lenz v. Universal Music Corp., a mother had posted to YouTube a 29-second video of her two children dancing to a Prince song, “Let’s Go Crazy,” which was playing in the background. In response, Universal sent YouTube a takedown notice on the video claiming that Lenz had infringed on the song’s use, and as a result, YouTube removed the video.

Lenz attempted to get the video reposted by claiming fair use to YouTube, and Universal responded by reiterating Lenz did not own the license to the song “Let’s Go Crazy.” Finally, Lenz won out and got the video reposted online, but she followed up by filing suit against Universal, arguing that the company had materially misrepresented that her video infringed on a copyright.

The Ninth Circuit held that this type of misrepresentation could occur, therefore, when a copyright holder fails to consider the possibility that the user of the copyright is protected under a fair use exception. Whether the holder considered fair use, the court said, should be evaluated under a subjective intent standard, and holders that pay mere “lip service” to that consideration may still be subject to liability.

The practical effects of this decision are, of course, yet to be seen, though a great many service providers are located within the Ninth Circuit. This decision might receive further review from the Ninth Circuit, however, given how fundamentally this could impact a simple step in the DMCA takedown notice process. On YouTube alone, users upload hundreds of hours of music per day, and copyright holders may not know with much specificity what proper consideration of fair use means. At the same time, this holding may help protect the rights of many users who have no intention of profiting off of a copyright’s use, such as with the mother in this case.

Sources: http://www.natlawreview.com/article/ninth-circuit-says-think-twice-sending-takedown-notice-under-dmca-be-sure-you-have http://www.jonesday.com/ninth-circuit-says-fair-use-must-be-considered-before-sending-a-dmca-takedown-notice-09-15-2015/

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