Fair Use Puts a Block on DMCA Take Down Tactics

Universal Music Corporation filed a DMCA takedown notice to remove from YouTube Stephanie Lenz’s 29 second home video of her two young children dancing to Prince’s song Let’s Go Crazy.  Lenz sued Universal for making misrepresentations of infringing use in its takedown notice. 

According to the Ninth Circuit, this case

boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use.

We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.

(Opinion pdf page 5).

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