United States: Ninth Circuit Says Fair Use Must Be Considered Before Sending A DMCA Takedown Notice

It is often said that hard cases make bad law. But what can be said of odd or even "crazy" cases? In one such case, Lenz v. Universal Music Corp., decided by the Ninth Circuit on September 14, 2015, a mother's 29-second home video of her two toddlers dancing to Prince's 1984 song "Let's Go Crazy" has made important new law with respect to "takedown notices" under the Digital Millennium Copyright Act ("DMCA"), holding that copyright holders must consider fair use before sending a takedown notification.

This decision increases the potential liability for copyright holders seeking to enforce their rights through the DMCA and should serve as a warning to ensure fair use is considered before sending a takedown notice.


Section 512(c) of the DMCA allows service providers, such as YouTube and Google, to avoid copyright infringement liability for storing users' content if, among other requirements, the service provider "expeditiously" removes or disables access to the content after receiving notification from a copyright holder that the content is infringing. In such "takedown notices," copyright holders are required to certify that: "We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law." 17 U.S.C. § 512(c)(3)(A).

In 2007, Stephanie Lenz ("Lenz") sued Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group (collectively, "Universal") under section 512(f) of the DMCA, which prohibits misrepresentation in takedown notices, after Universal sent a takedown notice to YouTube regarding a 29-second home video Lenz posted of her two young children dancing to Prince's song "Let's Go Crazy," which she titled "Let's Go Crazy #1." Universal claimed that the video constituted an infringing use of the Prince song.

Lenz claimed that the video was fair use, and accordingly, Universal violated section 512(f) when it certified in its takedown notice that the video was "not authorized." Although Universal's video evaluation guidelines did not explicitly include consideration of fair use, the Universal employee who reviewed the video did consider whether the video made "significant use" of a Prince song, whether the song was recognizable, and whether the song was the focus of the video.

After YouTube received the takedown notification, it removed the video and notified Lenz of the takedown. Lenz attempted to restore the video by sending a counter-notification to YouTube under section 515(g)(3) of the DMCA. Universal responded to the counter-notification by reiterating that the video constituted infringement because Lenz did not have a license to use the song. Lenz sent a second counter-notification to Universal, which resulted in YouTube's reinstatement of the video. Lenz then filed this suit, claiming misrepresentation under section 512(f).

On February 25, 2010, the district court granted Lenz's partial motion for summary judgment on Universal's six affirmative defenses, and subsequently both parties moved for summary judgment on Lenz's misrepresentation claim. On January 24, 2013, the district court denied both motions and certified its summary judgment order for interlocutory appeal to the Ninth Circuit.

The Ninth Circuit Decision

The Ninth Circuit first considered what it deemed "an issue of first impression" of whether a copyright owner's certification under section 512(c)(3)(A)(v) that material is "not authorized" requires copyright holders to consider whether the potentially infringing material is a fair use of a copyright under 17 U.S.C. § 107 before submitting a takedown notice.

The Ninth Circuit held that the Copyright Act "unambiguously contemplates fair use as a use authorized by law," and accordingly, "a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)." The Ninth Circuit based its holding on the language of section 107, which provides that "the fair use of a copyrighted work ... is not an infringement of copyright," and on definitions of "authorize" (which is not defined in the Copyright Act) from Black's Law Dictionary, concluding that "because 17 U.S.C. § 107 both 'empowers' and 'formally approves' the use of copyrighted material if the use constitutes fair use, fair use is 'authorized by the law' within the meaning of § 512(c)." In so holding, the Ninth Circuit rejected Universal's argument that fair use is merely an affirmative defense to infringement.

The Ninth Circuit then considered if a genuine issue of material fact existed as to whether Universal knowingly misrepresented that it had formed a good faith belief that the video did not constitute fair use. According to the court:

if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to § 512(f) liability.

Here, the Ninth Circuit concluded that a genuine issue of material fact existed regarding Universal's subjective good faith belief, and that Lenz could proceed under an actual knowledge theory. The Ninth Circuit explained that the good faith belief requirement is subjective, not objective. Accordingly, it did not matter whether Universal "should have known" that the video was fair use, but only whether Universal had actual knowledge that the video was fair use and misrepresented that it did not. Given Universal's contention that its procedures were tantamount to fair use consideration, a jury must decide whether such procedures were sufficient for Universal to form a subjective good faith belief about fair use of the song in Lenz's video.

The Ninth Circuit advised that consideration of fair use "need not be searching or intensive" and specifically noted that implementation of computer algorithms such as computer programs that can automatically identify content that matches the video or audio track of copyrighted material, or uses of nearly the entirety of a copyrighted work, "appears to be a valid and good faith middle ground" for reviewing a high volume of content while still considering fair use. However, this issue was not definitively decided because there was no evidence Universal used a computer program to identify infringing content when the takedown notification at issue was sent.

The Ninth Circuit also held that "the willful blindness doctrine may be used to determine whether a copyright holder 'knowingly materially misrepresented' that it held a 'good faith belief' that the offending activity was not a fair use." The Ninth Circuit found that the district court erred in denying Universal's summary judgment motion on this doctrine as Lenz failed to provide any evidence on the first required factor that Universal subjectively believed there was a high probability that the video constituted fair use.

Finally, the court held that a plaintiff may seek recovery of nominal damages for an injury incurred as a result of a section 512(f) misrepresentation, rejecting Universal's argument that Lenz was required to demonstrate "actual monetary loss." The court declined, however, to consider the scope of Lenz's recoverable damages, leaving it to the district court to determine whether Universal had in fact violated section 512(f), and if so, what damages Lenz should receive.

Ramifications of the Decision

Given the location of many prominent service providers in the Ninth Circuit, copyright holders submitting takedown notices should ensure that fair use considerations are part of their takedown process. While fair use considerations may already generally be included in a takedown analysis, explicitly enumerating the fair use factors in any takedown guidelines would be helpful. Additionally, given the Ninth Circuit's guidance, copyright holders may consider making use of computer programs to help streamline the fair use review process while balancing the competing demands of a fast response to infringement and compliance with DMCA requirements. Given the issue of first impression and the increased burden to copyright holders, there is the prospect that Universal will seek en banc review in the Ninth Circuit or appeal to the United States Supreme Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.