Computer and Internet Law

The Digital Millennium Copyright Act (DMCA) provides a process by which a copyright owner may demand the removal of its copyrighted materials from the systems of a service provider. See 17 U.S.C. § 512(c)(3)(A). To submit this demand, the copyright owner must, among other things, have a “good faith belief that use of the [copyrighted] material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). Material misrepresentations in this process may subject the copyright owner, or its agent, to damages, including costs and attorneys’ fees. 17 U.S.C. § 512(f).

Last week, the District Court for the Northern District of California issued a ruling in Lenz v. Universal Music Corp. et al., No. C-07-3783-JF, 2008 WL 3884333 (N.D.Cal. Aug. 20, 2008), denying Universal’s motion to dismiss the action filed by Stephanie Lenz. (This action pertains to Universal’s takedown notice against Lenz’s YouTube video of her daughter dancing to Prince’s “Let’s Go Crazy” song.) The District Court stated:

Here, the Court concludes that the plain meaning of ‘authorized by law’ is unambiguous. An activity or behavior ‘authorized by law’ is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that ‘the fair use of a copyrighted work … is not an infringement of copyright.’ Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

(Internal citations omitted.)

Thus, it is important for copyright owners to consider all of the nuances and circumstances before issuing a takedown notice for their copyrighted works. Now, with that said, it is also important to note the procedural status of this case. The Court’s denial of Universal’s motion to dismiss does not represent an automatic, or clear cut, victory for Lenz. Instead, Lenz must still demonstrate that Universal transmitted the takedown notice in “subjective bad faith,” which may be difficult to prove in many circumstances.

[Note: An astute fellow blogger, Ethan Ackerman, noted that Universal had argued in its reply papers that its notice was not a DMCA takedown notice. [Article; Reply Papers (Hosted by the EFF)] Although the Court did not address that argument in its ruling, we can expect this to be an issue at trial, and in future cases, as copyright owners look for ways to limit their exposure to Section 512(f).]