On July 7, a Ninth Circuit panel heard oral argument regarding whether copyright owners abuse the Digital Millennium Copyright Act (“DMCA”) when they utilize the statute’s Notice and Takedown procedures to request the Takedown of material that constitutes a “fair use” of copyrighted material.

In 2007, Universal Music Group sent a Takedown Notice to YouTube requesting removal of plaintiff Stephanie Lenz’s 30-second clip of her son dancing to Prince’s “Let’s Go Crazy.”  Shortly thereafter, YouTube removed the video from its site.  After Lenz filed a counter-notice, YouTube reinstated the video.  Universal did not pursue the matter further.  Lenz, working with the Electronic Frontier Foundation (“EFF”), then sued Universal, alleging Universal’s Takedown Notice violated section 512(f) of the DMCA because her video was subject to the fair use protections of the Copyright Act (17 U.S.C. §107).  In 2013, U.S. District Judge Jeremy Fogel denied both parties’ motions for summary judgment, ordered a trial, and both sides appealed.

The DMCA (17 U.S.C. § 512) states that a service provider, such as YouTube, will not be liable for copyright infringement where that service provider removes infringing content upon receipt of a properly prepared Takedown Notice, pursuant to 17 U.S.C. § 512(c)(3).  While this statute offers a uniform and streamlined process for removing infringing content, it is also subject to abuse.  Accordingly, section 512(f) of the DMCA provides for liability where the party submitting the Takedown Notice misrepresents that material is infringing.  Specifically, 17 U.S.C. § 512(f) states that any person who knowingly, materially misrepresents that a material or activity is infringing will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer who is injured as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

This case calls into question whether section 512(f) puts an affirmative burden on the party requesting a Takedown to examine the merits of a poster’s potential fair use defense.

On appeal, the Ninth Circuit is considering whether a fair use analysis is a necessary precursor to submitting a Takedown Notice, or an unnecessary burden to rights holders.  The panel appeared to agree with Lenz and the EFF that this was fair use, but expressed concerns as to what standard could reasonably be applied by copyright holders in this context.