United States: Fair Use Is Not A Defense – 9th Circuit Refuses To Rehear Dancing Baby Notice And Takedown Under The DMCA

For those unfamiliar with Stephanie Lenz's case against Universal Music, here's a summary. Lenz posted on YouTube a video of her infant son reacting to the song "Let's Go Crazy" as it played during the halftime show of the National Football League's 2007 Super Bowl. Universal Music Corporation found this video and issued a notice, under the Digital Millennium Copyright Act (DMCA), to YouTube to have it take down the video.

This procedure, which is often referred to as a notice and takedown, is a powerful tool for copyright owners. Indeed, for many copyright owners, having the infringing content removed resolves the infringement issue. For others, removing the material provides considerable leverage for the copyright owner to negotiate proper use of its copyrighted material or to negotiate a monetary settlement without filing a lawsuit.

The notice and takedown procedure was designed to encourage an Internet service provider (ISP) to cooperate in copyright enforcement by eliminating monetary risk for the ISP as long as the ISP follows the procedures outlined in the DMCA. The DMCA outlines a number of conditions that an ISP must meet to qualify for the act's protection, including the requirement that the ISP expeditiously take down allegedly infringing content after receiving a proper notice from the copyright owner. The question of what constitutes proper notice is at the heart of the Lenz case.

The DMCA identifies elements of proper notice, including, among other things, a statement that the complaining party has 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." 17 U.S.C. 512(c)(3)(A)(i-vi) [emphasis added]. To guard against abuses of the notice and takedown procedure, the DMCA provides liability for damages and attorneys' fees if a person providing notice knowingly and materially misrepresents that the accused material or activity is infringing. 17 U.S.C. 512 (f).

In Lenz, Lenz argued that Universal made a material misrepresentation when notifying YouTube that her video was infringing because it failed to consider that her use was authorized as a fair use. The 9th Circuit disagreed, as we wrote about on this blog.1

In sum it explained that fair use may be pled as an affirmative defense, but within the context of the Copyright Act, it is a limitation on copyright and, therefore, authorization under the law. While Universal was bound to consider whether Lenz's video was a fair use before providing notice and asking that the work be taken down, the 9th Circuit affirmed the district court's ruling that Lenz had not demonstrated misrepresentation as a matter of law. Both Lenz and Universal asked the 9th Circuit to rehear its summary judgment motions (en banc). The 9th Circuit refused, but did take an opportunity to revise its earlier opinion.

In the revised opinion, the court added further support for its holding that the copyright holder need only form a subjective good faith belief that a use is not authorized, citing the language of the DMCA. In particular, it submitted that if an objective standard of reasonableness were to apply, Congress could have incorporated this standard. The fact that it did not indicates an intent to apply the subjective standard traditionally associated with good faith.

The majority also removed dicta commenting on the burden of assessing fair use and acknowledging use of algorithms as a valid middle ground for processing content and meeting the DMCA's requirements. Removal of this language indicates that the majority is not willing to support a per se rule that screening algorithms satisfy the good faith requirement of the DMCA. Consequently, use of such screening systems carries the risk that they will not satisfy the DMCA's good faith notice requirement.

The dissent also amended the court's opinion, removing a lengthy criticism of the majority opinion's consideration of whether a good faith basis for a notice could be formed without any consideration of fair use. The revised dissent emphasized that knowledge that there is no basis for a representation is equivalent to making a misrepresentation. The dissent concluded that one who asserts a belief that a work is infringing without considering fair use has made a knowing misrepresentation.

The 9th Circuit's remand will allow the district court to factually consider what constitutes a good faith assessment of fair use. While the majority took no position as to what constitutes a good faith basis when considering fair use, the dissent would require a copyright holder to apply the statutory fair use factors:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

From a planning perspective, the safer course for any screening program appears to include an explicit review of the fair use factors and other authorizations applicable to copyrighted works to meet the dissent's standard. While Lenz focused on proper notice, the same prohibition against misrepresentations applies to responses seeking to have the material put back up as well. As noted above, the consequence of making a misrepresentation carries liability for damages and attorneys' fees. Given that this liability could greatly exceed any monetary gain from publishing a work online or recovery for infringement, both content providers seeking to publish Internet content and those attempting to identify and take down infringing works should seek legal guidance before moving forward.


1 The original 9th Circuit decision was a 2-1 decision with a majority and a dissenting opinion.

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.

Similar Articles
Relevancy Powered by MondaqAI
Womble Bond Dickinson
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Womble Bond Dickinson
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions