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“Fair Use” Defense must be considered under new DMCA ruling

Posted by Steve Vondran | Oct 14, 2015 | 0 Comments

Copyright holders must evaluate “fair use” defense before sending DMCA take down notices

Bonus materials:  Click on the podcast icon above to hear an episode of “Vondran Legal Hour” where Attorney Steve explains this intellectual property law concept.


In the ‘good ole' days if you (as a copyright holder, ex. author, filmmaker, photographer, software designer, video producer, songwriter, etc.) saw another person infringing your copyrighted works on the internet, for example on facebook, pinterest, twitter, youtube, google, you could simply send a “DMCA takedown” notice to the website owner and they would put it through the DMCA “take-down” review process.  After a new ruling by a Federal Court, the copyright holder may now be required to first analyze the copyright law “FAIR USE DEFENSE” factors BEFORE sending or transmitting the take down notice.  This is very important to know, and it is important that valid fair use defenses exist in our modern social media information age.  Failure to do the analysis could cripple your rights as a copyright holder.

Lenz v. Universal Music Corporation

This is the big new case that recently was handed down – Lenz v. Universal Music Corporation.  It deals with a DMCA takedown notice and an attempt by a copyright holder to have infringing content pulled off the internet.  Here is what the Court said about “fair use:”

“Fair use is not just excused by the law, it is wholly authorized by the law. In 1976, Congress codified the application of a four-step test for determining the fair use of copyrighted works: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include,

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 17 U.S.C. § 107 (emphasis added).

The statute explains that the fair use of a copyrighted work is permissible because it is a non-infringing use.”

DMCA federal copyright law and the “fair use” defense.

The fair use defense test is a test that allows you to find out whether or not your proposed use of a copyright work would be deemed a “fair use” and thus permitted (as opposed to prohibited) by law.  There have been many intellectual property cases that have analyzed the fair use factors.  Here is the basics of the holding in the Lenz case, and the Court basically held that a failure to consider the fair use test could subject the COPYRIGHT HOLDER to liablity:

 “To be clear, 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.  Cf. Disney Enters., Inc. v. Hotfile Corp., No. 11-cv-20427, 2013 WL 6336286, at *48 (S.D. Fla. Sept. 20, 2013) (denying summary judgment of § 512(f) counterclaim due to “sufficient evidence in the record to suggest that [Plaintiff] Warner intentionallytargeted files it knew it had no right to remove”); Rosen v. Hosting Servs., Inc., 771 F. Supp. 2d 1219, 1223 (C.D. Cal. 2010) (denying summary judgment of § 512(f) counterclaim where the takedown notification listed four URL links that did not contain content matching the description of the purportedly infringed material); Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1204–05 (N.D. Cal. 2004).

Attorney Steve Tip: Before you just send a DMCA take down demand to an ISP or cable provider, make sure you have documentation of your analysis of the fair use factors.  Some things that may be considered are fair use are:

  1.  A parody that makes fun of the original and creates something new in the process
  2. Using copyrighted content in a “de minims” fashion
  3. Using a copyright work, but transforming it into something totally new
  4. Use of copyrighted materials on non-commercial websites
  5. Use of copyrighted material for political speech or movies

These are just a few things that could arise.  There are many other types of things that could allow a person or business to avoid the take-down and fight for a lawful use of the copyrighted material.

What is the potential liability under section 512(f) cited above?

Under Section 512 of the Digital Millennium Copyright Act section 512(f) liability can arise where:

(f) Misrepresentations. – Any person who knowingly materially misrepresents under this section —

(1) that material or activity is infringing,


(2) that material or activity was removed or disabled by mistake or misidentification,shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

We can review your copyright case for “fair use” defense under the Copyright law

We can help review the four fair use defense factors and provide you with an honest, objective opinion, or in cases involved serious works of art such as downloadable movies, songs, art work, videos, films, software programs and other protected copyright content, we can provide a legal opinion letter.

Contact a DMCA federal copyright law firm

Before you fire off your DMCA takedown notice to Youtube, Facebook, Pinterest, Twitter or other social media websites, make sure you have considered whether or not the use might be a “fair use” (and therefore legal) under the eyes of the law.  Failure to do so could wind the copyright holder into an unenviable position of defending themelves.  We can help you make the determination and represent you or your business in intellectual property arbitration, mediation, or litigation.  We offer flat rate fees for many types of cases.  Call us at (877) 276-5084 or fill out the form below.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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