Copyright Holders Cannot Demand Take Down of Online Content Without a Good Faith Belief of “Fair Use” Violation

Earlier this month, the Court of Appeals for the Ninth Circuit denied summary judgment in Universal Music Group, et al. v. Stephanie Lenz, meaning that a full trial will commence to determine if Universal Music Group may be liable for briefly trying to take down a 29-second home video of a baby dancing to the Prince song “Let’s Go Crazy.”

The Ninth Circuit ruled that copyright holders cannot demand online content that uses their material be taken down without determining whether the use constitutes “fair use.”  Fair use allows portions of copyrighted works to be used for purposes of criticism, comment, research or in other limited circumstances without a license from the copyright holder.

The case started in a San Jose federal court in 2008 and since then, Universal has spent years trying to dismiss Lenz’s lawsuit. Lenz contends that the media giant and Prince are abusing the Digital Millennium Copyright Act (“DMCA”), which was intended to reduce intellectual property thievery on the Web.

Judge Richard C. Tallman stated that “copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification — whether allegedly infringing material constitutes fair use.”

Attorneys for Universal argued that the company’s handling of the video complied with notice-and-takedown procedure of the DMCA, while attorneys for Lenz contended that “Universal did not give a moment’s thought to whether the video is a fair use.”

A jury will now have to decide whether Universal had formed a good faith belief that the video violated fair use.