Another YouTube's DMCA case raising fair user concern

As the DMCA requires content owners to make certain showing of infringement to ISPs for the ISP to remove the alleged infringing material from its network, the problem arises as there is no guarantee that the alleged infringing material is an actual infringement. Rather, the DMCA only requires that the copyright holder has a “good faith belief” that the use of material has no legal ground. Therefore, most notices to takedown lack precision and are “commonly faulty.”

Before the California District court landed it decision in Lenz v. Universal Music,[1] content owners only have to determine whether their rights are violated. However, after Lenz content owners have a responsibility to consider whether the alleged infringing material is a fair use before issuing a takedown notice. This case involves online service provider YouTube.com and its user Lenz, who sued a record label (Universal) after her video posted on YouTube.com was removed due to the takedown notice claiming copyright violation in the song “Let’s Go Crazy” own by Universal. After YouTube had received a DMCA takedown notice, it removed the material on the following day and sent Lenz an email informing that the video had been removed and warning that repeated copyright infringement incidents could result in removal of her account and contents. Lenz field a counter-notice claiming that the material was wrongfully removed and remanding that it be reposted. Six weeks later YouTube reposted the video.

Subsequently, the lawsuit was brought against Universal claiming that the DMCA requires the copyright owner to consider fair use doctrine. Universal counterclaimed that there is no requirement that copyright owners has to determine whether the material is fair use before sending a takedown notice. However, the court did not buy this argument and ruled for Lenz that a copyright holder is required to consider whether there is fair use involve before formulating a good faith belief because a content owner must “make an initial review of the potentially infringing material prior to sending a takedown notice.” The court further held that sending takedown notice without proper consideration of the fair use doctrine deems acting in bad faith which is may be held liable for misrepresentation under §512(f) of the DMCA.

[1] Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008).