From the Citizen Media Law Project blog:
A federal district court in California held on Wednesday that copyright owners must consider fair use before sending DMCA takedown notices to avoid liability for abuse of the law's procedures. The ruling is a huge victory for free speech advocates and may have far-reaching implications for the way content owners police infringement online.
The decision is just the latest highlight in a dispute that has drawn public attention from the start. In February 2007, Stephanie Lenz posted a video of her toddler son on YouTube. In the 29-second video, Lenz's son dances to Prince's "Let's Go Crazy," which is playing in the background. In June 2007, counsel for Universal Music sent YouTube a DMCA takedown notice pursuant to 17 U.S.C. § 512(c), claiming that the video infringed its copyright in the Prince song and requested that YouTube remove it from the website. YouTube complied and notified Lenz about the takedown. Lenz sent a counter-notification pursuant to 17 U.S.C. § 512(g), and the site put the video back up about six weeks later.
Going on the offensive, Lenz then sued Universal for violation of 17 U.S.C. § 512(f), which creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. The district court dismissed Lenz's orginal complaint back in April, finding that she had failed to allege facts showing that Universal knew that its copyright complaint was bogus. The court gave her permission to amend, however, and she came back with detailed factual allegations suggesting that Universal sent the takedown notice at Prince's behest "based not on the particular charateristics of [the video] or any good-faith belief that it actually infringed a copyright but on its belief that, as 'a matter of principle' Prince 'has the right to have his music removed.'" Sec. Am. Cmplt. ¶ 31.
When sending a takedown notice, copyright owners are required to state that they have 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) (emphasis added). The crux of Lenz's complaint is that Universal lacked this good-faith basis because it deliberately ignored whether her use of Prince's song was fair use.
Universal argued in its motion to dismiss that "copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement of copyright rather than a use authorized by the copyright owner or by the law." Lenz v. Universal Music Corp., No. 5:07-cv-03783, slip op. at 5 (N.D. Cal. Aug. 20, 2008). The court squarely rejected this argument, holding as follows:
Last updated August 25, 2008