Since 1998, when the Digital Millennium Copyright Act (the “DMCA”) was enacted, the DMCA take-down notice has achieved the status of a trusted weapon aimed by copyright owners directly at the unauthorized transmission of their content online.  When the Ninth Circuit Court of Appeals ruled on September 14 in Lenz v. Universal Music Group, 2015 U.S. App. LEXIS 16308 (“Lenz”), stating, “We hold that the statute requires copyright holders to consider fair use before sending a takedown notification,” it appeared at first glance that the court had turned a simple, point-and-shoot solution into one of those infernal contraptions deployed by Wile E. Coyote.  More than one court has observed that “fair use principles are notoriously difficult to apply.”   See, for instance,Cambridge University Press v. Becker, 863 F.Supp.2d 1190, 1363 (N.D. Ga. 2012) (reversed on other grounds). And the leading treatise on copyright law opines, “Usually, fair use determinations are so clouded, that one has no sure idea how they will fare until the matter is litigated.”  4-12 Nimmer on Copyright § 12B.07 (2015).  Under such circumstances, what could an individual copyright owner reasonably be expected to do to comply with a requirement such as the one that pertains now in the Ninth Circuit?

The Ninth Circuit did not alter the law, which has always required that, to be effective, a take-down notice must include “[a] statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”  17 U.S.C. § 512(c)(3)(A)(v) (emphasis added).  Where the Ninth Circuit broke ground was in specifying that the law at issue was the law of fair use.

While the Lenz court prescribed consideration of the alleged infringer’s fair use, it did not enunciate a procedure for such a consideration, nor does the Copyright Act itself.  It should be clear that a copyright owner need not demonstrate the alleged infringer’s right.  “[T]he burden of proving fair use is always on the putative infringer.”  Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996).  All that the law requires is for the copyright holder to form a good faith belief that the complained of use is not authorized.  As the Ninth Circuit pointed out more than a decade ago, “the ‘good faith belief’ requirement … encompasses a subjective, rather than objective standard,” a belief strong enough to withstand that other portion of Section 512 that imposes liability on a copyright owner for a knowing and material misrepresentation that it had formed that good faith belief when, in fact, it had not.

As a Practical Matter

It behooves the copyright owner or its agent or employee charged with ferreting out potentially infringing uploads to have at least a rudimentary familiarity with the fair use portion of the Copyright Act, 17 U.S.C. 107.  Section 107 is brief, comprising a preamble, which identifies some—but by no means all—of the permissible purposes that might qualify a use as fair (e.g., commenting on, reporting about a copyrighted work; classroom use; etc.) and the four factors that constitute the core of a fair use inquiry: the user’s purpose, the nature of the copied work, the amount of the protected work that was copied, and the effect of such uses on the market for the original work—a checklist that a reasonably well-trained employee might master or a computer program might apply.  SeeLenz at [*22].

In this light, the burden imposed by the Ninth Circuit does not seem especially daunting.  The court itself said, “If … a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion.”  Lenz at [*20].

Nevertheless, an unfounded statement of good faith can have significant consequences.  17 U.S.C. § 512(c)(3)(A)(v), which one might call the good faith provision, is paired with 17 U.S.C. § 512(f), which one might call the bad faith provision.

Section 512(f) cuts two ways, imposing liability on copyright owners, on the one hand, and alleged infringers, on the other hand, if either knowingly and materially misrepresents that material online is infringing or was removed or disabled by mistake or misrepresentation.

In short, as the copyright owner you should be familiar or charge an agent or employee to become familiar with the language of Section 107 and apply it even-handedly to putatively infringing material online before pulling the trigger on a take-down notice.  Then you reduce the chance that you might end up with powder burns like the hapless Wile E. Coyote.