Consider Fair Use Before Requesting DMCA Takedown

In September, 2015, the Ninth Circuit held that before a copyright owner issues a DMCA notice, the owner must make a “subjective good faith” analysis regarding fair use. An owner who neglects to make this far use analysis is liable for damages for copyright misrepresentation under 17 USC § 512(f). The case involved a long-running dispute over the use of a Prince song in a YouTube video featuring a dancing baby. In making this ruling, the Ninth Circuit acknowledged that for the purposes of the DMCA, “fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses.” (Lenz v. Universal Music Corp., No. 13-606, 09/14/2015 (9th Cir. 2015. ).)