Fair Use is a Defense to DMCA Takedown Notices and Could Subject Copyright Holders to Attorney Fees

The Digital Millennium Copyright Act provides a potent mechanism for copyright owners to demand that certain copyrighted materials be taken off of websites. This is because online services providers are given immunity from liability as long as they “expeditiously” remove content after receiving notification from a copyright holder that the content is infringing.

The idea behind giving service providers immunity is rooted in the idea that if all the service provider is dong is allowing people to post content, then the content poster, and not the provider, should be liable for the copyright violation. That makes sense. Service providers like YouTube would go out of business if they were held liable for all the copyrighted videos posted on there.

The process requires the copyright holder to contact patents and copyright lawyers like Incubate IP to send a notice to the service provider which essentially identifies the infringement and provides a statement that the copyright holder believes in good faith the infringing material “is not authorized by the copyright owner, its agent, or the law. This is often referred to as a “takedown” notice.

The alleged copyright infringer then can restore the content by sending the service provider something referred to as a “put-back” notice. At that point, the service provider will restore access to the allegedly copyrighted material unless a lawsuit is filed within 14 days against the alleged infringer.

Here is the catch. Violating a copyright has some severe consequences so accidentally filing a takedown notice carries reciprocal consequences. If the copyright holder made a mistake either in identifying the alleged violation or in assuming the content was an infringement, they are hit with the following:

“…shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” 11 U.S.C. 512(f).

Fair use is an exception to copyright infringement. So what happens when the alleged violation is fair use? On September 14, 2015, in Lenz v. Universal Music Corp., the 9th Circuit Court of appeals made it clear that the copyright owner must be certain that it does not issue a takedown notice in situations where the alleged infringement is allowed due to fair use.

The Court also took it a step further. Typically, a copyright holder need only form a subjective good faith belief that a use is not authorized but the Court allowed for a “willful blindness theory” which means that if the copyright owner fails to consider fair use, one way, or another, then under the willful blindness theory, it could never have formed a subjective belief and is therefore, liable under the statute. The actual test is:

(1) the defendant must subjectively believe that there is a high probability that a fact exists and
(2) the defendant must take deliberate actions to avoid learning of that fact.

You can find a copy of the 9th Circuit decision here.

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