Lenz v. Universal Music: Ninth Circuit Amends Opinion to Broaden Fair Use Protections in DMCA Takedowns

Copyright Digital Millennium Copyright Act Fair Use

Lenz v. Universal Music Corp., Nos. 13-16106, 13-16107 (9th Cir. Mar. 17, 2016), slip opinion hosted by the Electronic Frontier Foundation (“EFF”)

The Ninth Circuit issued an amended opinion in Lenz v. Universal Music that broadened the scope of the holding requiring copyright holders to consider fair use before sending takedown notices under the Digital Millennium Copyright Act (“DMCA”).  The dispute arose when Universal Music sent a DMCA takedown notice to YouTube directing YouTube to remove a video taken by Stephanie Lenz featuring her toddler dancing to a song by the artist Prince.  Lenz, represented by the Electronic Frontier Foundation, subsequently sued Universal for sending an improper takedown notice.  JD Supra and Techdirt provide commentary.

Under the DMCA, copyright owners can submit a takedown notice to an Internet Service Provider hosting content that allegedly infringes copyright that directs it to remove the content.  Copyright holders, however, must have a “good faith belief” that the material infringes copyright law.  In the original opinion affirming a denial of summary judgment, the Ninth Circuit held that the DMCA requires a copyright holder to consider whether allegedly infringing content qualifies for the fair use defense before sending the takedown notice.  The court qualified the requirement, however, cautioning that consideration of fair use need not be “searching or intensive.”  Further, the court concluded that an entity may rely on a computer program to evaluate fair use.

The revised opinion issued March 17, 2016 removed the language that permitted the inquiry to be less than intensive as well as the language concerning use of software to analyze fair use.  The court did not alter its ultimate ruling denying summary judgment and turned down both parties’ request for an en banc rehearing.

Judge Smith also revised his dissenting opinion, arguing that Universal did not have a good faith belief that Lenz’s video was infringing.  Noting that Universal trained its DMCA agents to consider only how significantly a video used a copyrighted song, and not the four fair use factors, Judge Smith concluded that Universal could not have had a good faith belief that Lenz’s use was infringing.

In response to the revised opinion, EFF expressed disappointment that the majority did not rule in favor of Lenz, as the dissent would have done.  Commentators had various reactions.  JD Supra noted that the Ninth Circuit’s amended opinion raises questions about whether use of automated processes is sufficient to fulfill a copyright owner’s obligations to consider fair use prior to sending takedown notices.  It also concluded that the revisions broadened the scope of the court’s holding on fair use.

Techdirect expressed less certainty that the reissued opinion would actually change the conduct of copyright holders.  It argues that copyright owners will continue to ignore fair use in practice because most people do not have the resources to challenge improper takedown notices.  This particular case, for example, has been ongoing for more than eight years, and would likely not have been possible without the support of the EFF.  “DMCA-enabled censorship” will thus continue.  Techdirt also criticizes the DMCA as a whole, arguing that more judicial oversight would force copyright holders to prepare well-pleaded filings that substantiate why a particular piece of content infringes copyright.

Sheri Pan is a third-year student at Harvard Law School interested in the intersection of technology and public interest law.