Stephanie Lenz posted a short home video on YouTubein February 2007 of her two young children dancing toa barely audible recording of the Prince song “Let’s GoCrazy.” In June of the same year, YouTube receiveda takedown notice from Universal Music Corp. Thenotice complied with the Digital Millennium CopyrightAct (DMCA) and included the statement “[w]e have agood faith belief that the [use of ‘Let’s Go Crazy’] is notauthorized by the copyright owner, its agent, or the law. ”After obtaining pro bono counsel, Stephanie Lenz fileda lawsuit the following month against Universal whichclaimed, inter alia, Universal violated the DMCA bymisrepresenting that Lenz’s use of a portion of Prince’ssong constituted copyright infringement. The DMCArequires that the copyright holder consider whetheranother’s use of their copyrighted work is authorizedby law or by the copyright owner’s permission. The DMCA further provides that any person who knowinglymaterially misrepresents that material or activity isinfringing, shall be liable for any damages, includingcosts and attorneys’ fees, incurred as the result of theservice provider relying upon such misrepresentation.

Lenz argued that prior to sending the takedownnotification, Universal did not first consider whetherher use of the copyrighted song constituted fair use(i.e., whether her use was authorized under the law ascontemplated by the DMCA). Universal argued that fairuse is not a use authorized under the law, but rather isan affirmative defense to copyright infringement.

On September 14, 2015, the Ninth Circuit affirmed thedistrict court’s denial of the parties’ cross motions forsummary judgment, affirming the district court’s holdingthat copyright owners must consider fair use beforeissuing DMCA takedown notices.

The holding in Lenz v. Universal Music Corp. sendsa clear message to copyright owners regardingunauthorized uses of the copyright owner’s work: before sending a DMCA takedown notice, make agood faith determination that the unauthorized userdoes not have a valid fair use defense under theCopyright Act. Interestingly, the Ninth Circuit stated thatthe “formation of a subjective good faith belief does notrequire investigation of the allegedly infringing content”and the court is “in no position to dispute the copyrightholder’s belief even if [the court] would have reached theopposite conclusion.”