Consider Fair Use Before Submitting Takedown Request
The U.S. Digital Millennium Copyright Act (DMCA) has been a potent tool for combatting copyright infringement on the Internet. Section 512 shields Internet service providers from liability if they expeditiously remove content after copyright owners submit takedown requests notifying the ISP of infringing content. Last week, in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright owners must consider fair use before sending takedown notices, or they could face liability for damages.
This decision cautions copyright owners to take a closer look at infringing content and document their fair use analysis before submitting takedown requests. An intensive investigation is not required and the fair use analysis may not be correct, but the copyright owner must have a good faith belief that fair use does not apply.