In the online content takedown and put-back volley provided under the Digital Millennium Copyright Act (DMCA) to limit service provider copyright infringement liability, the Ninth Circuit Court of Appeals held earlier this week that a copyright owner must consider whether the target content is fair use of the copyrighted work before serving a takedown notice. Lenz v. Universal Music Corp., Nos. 13-16106, 13-16107, 2015 WL 5315388, (9th Cir. Sept. 14, 2015)

The DMCA has always required a statement that the copyright owner believes in good faith the target content is not authorized by the copyright owner, its agent, or the law. The Ninth Circuit has now held fair use is an authorization under the law as contemplated by the statute. Therefore, to avoid liability for making a knowing misrepresentation that the target content is infringing, the copyright owner must have a good faith belief that the target content is not a fair use of the copyrighted work.

In basic terms, the DMCA, 17 U.S.C. § 512, provides a safe harbor from copyright liability for service providers if they quickly remove or disable access to online content after receiving a takedown notice including a statement of good faith belief from the copyright owner that the targeted content is infringing. The service provider must also notify the user responsible for the content of the takedown. To have the content put-back, the user must send a counter-notification that includes a statement of good faith belief that the material was removed or disabled as a result of mistake or misidentification. After receiving a counter-notification, the service provider restores the content without fear of infringement liability unless it receives notice that the copyright owner filed a lawsuit against the user to restrain use of the targeted content. To deter abuse of this extrajudicial process, copyright owners may be liable for damages if they knowingly materially misrepresent that targeted content is infringing.

In an issue of first impression, the Ninth Circuit held fair use of a copyrighted work is not just excused by the law but is expressly authorized by the law. Therefore, to make the required statement in the DMCA takedown notice regarding a good faith belief that the targeted content is not authorized by the law, the copyright owner must have a good faith belief that the targeted content is not a fair use of the copyrighted work. Under the copyright statute, there are four factors to consider in determining whether the use made of a work in any particular case is a fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The fair use analysis is often misunderstood and incorrectly applied, making guidance by a trained legal professional helpful to establish a good faith belief that the targeted content is not subject to fair use. Without evidence of a proper fair use analysis, a copyright owner may be subject to liability for damages resulting from a takedown notice sent under the DMCA.