Copyright Owners Must Consider the Fair Use Doctrine when Issuing DMCA Takedown Notices

17 02 2009

Author: Stuart Loh

The plaintiff, Stephanie Lenz, posted a 29-second video clip on YouTube of her children dancing to the Prince song “Let’s Go Crazy.” Universal, the copyright holder of that song, issued a DMCA takedown notice with which YouTube complied. Lenz believed that her otherwise unauthorized use of the song was permissible under the fair use doctrine and issued a counter-notice. YouTube reinstated the video six weeks later. Under 17 U.S.C. § 512(c)(3)(A)(v), DMCA takedown notices must contain a statement that the issuer has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner … or the law.” Lenz sued Universal and claimed that forming such a good faith belief required a consideration of the fair use doctrine. She argued that because Universal had allegedly not given such consideration, it had misrepresented in its takedown notice that it had, in breach of 17 U.S.C. § 512(f).


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