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Online Piracy: 9th Circuit Cautions Copyright Holders re DMCA Takedown Notices


Franchise Agreement LawyerIntellectual Property Attorney



by Tal Grinblat
(818) 907-3284


A mother who uploaded a 29 second video to YouTube probably never dreamed she'd wind up with over a million views and a lawsuit by a major music publisher that went to the Ninth Circuit court of appeal.

Stephanie Lenz first videotaped her toddlers cavorting in her kitchen back in 2007 – Prince's Let's Go Crazy was playing in the background. She posted the video online along with the title "Let's Go Crazy" #1 to share with her family and friends. About four seconds into the video, Lenz asks her thirteen month-old son “what do you think of the music?” after which he jumped up and down while holding a toy.

An employee of Universal's music division (acting as Prince’s publishing administrator responsible for enforcing his copyrights) found the song on YouTube, considered the video's title and Lenz's question to her son and other details, to conclude the song was the focus of the video. Universal then sent YouTube a takedown notice pursuant to Title II of the Digital Millennium Copyright Act (DMCA) demanding the removal of Lenz's video.

To avoid infringement claims, YouTube complied with the DMCA notice and subsequently notified Lenz of the removal – citing Universal's claims of copyright infringement. Section 512(c) permits service providers, like YouTube to avoid copyright infringement liability for storing users’ content if the service provider “expeditiously” removes or disables access to the content after receiving notification from a copyright holder that the content is infringing. 17 U.S.C. § 512(c).

Lenz responded with a counter-notification to Universal, asserting fair use of the Prince song, and a demand that YouTube reinstate the video.

Abuse of the DMCA

If an entity abuses the DMCA notice procedure, it may be subject to liability under §512(f). That section provides:

Any person who knowingly materially misrepresents under this section—

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages.

The 9th Circuit, in considering Lenz's claims that Universal misrepresented Lenz’s copyright infringement in their takedown notice to YouTube, questioned whether or not Universal abused the takedown procedures by not first evaluating whether or not the alleged infringement constituted fair use.

The Copyright Act of 1976 defines fair use as use of another’s work for purposes of criticism, comment,  news reporting, teaching, scholarship, or research (17 U.S.C. § 107). The Act includes a four part test to determine what constitutes fair use:

(1) Purpose or character of use, including commercial or nonprofit purposes;

(2) Nature of the copyrighted work;

(3) Amount of the work used;

(4) Effect of the use of the work on its market value.

The three judge panel decided there was not enough evidence to conclude that Universal knowingly made misrepresentations of copyright infringement in the DMCA takedown because the copyright holder need only form a subjective good faith belief that a use is not authorized to bring a DMCA take down notice.  However, the Court made it clear that copyright holders must consider the doctrine of fair use before issuing takedown notices:

Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it. 

Should a jury conclude that Universal ignored or neglected to assess fair use before sending the takedown notification, it will be liable for damages.  Similarly if in evaluating the evidence a jury finds Universal’s actions were NOT sufficient to form a subjective good faith belief about the video’s fair use or lack thereof, Lenz could again recover damages from Universal, even if Lenz’s damages are nominal.

An attorney at the Electronic Frontier Foundation whose goals include protecting free speech online and represented Lenz, issued this statement:

Copyright abuse can shut down online artists [sic]   political analysts or — as  in this case — ordinary families who simply want to share snippets of their day-to-day lives. Universal must stop making groundless infringement claims that trample on fair use and free speech.

Tal Grinblat is an Intellectual Property Attorney and Shareholder at our firm. Contact him via email: or by phone: (818) 907-3284.

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