When a Takedown is used Wrongly

The Ninth Circuit has ruled that prior to seeking a Takedown under the DMCA, copyright holders must perform a fair-use evaluation of the alleged infringement. Failure to do so, may expose the copyright owner to damages for wrongfully seeking a DMCA takedown.

By its definition, fair use includes non-commercial portions of a work which do little to threaten the actual commercial value of a work of art and also include parodic, journalistic, critical, and educational uses. The new ruling is a departure from the statutory provisions of the DMCA, which simply require that the person seeking a takedown simply have a good faith basis to believe the use violates the artists’ copyright.

According to the attorney for the winning side, the ruling “sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech….

Congress gave copyright-holders extraordinary power to send an e-mail and take content offline. With that kind of power comes responsibility to consider whether the posting was authorized.”

In the future, the ruling may provide a basis for others who feel their online content was removed without consideration of the fair use factors to sue copyright holders for wrongful use of the DMCA takedown procedures.

While these types of cases rarely produce large damages, they do allow for potential recovery of legal fees as well as costs.

The case is Lenz v. Universal Music Corp., and it involves a video of a baby dancing to Prince’s song “Let’s Go Crazy” which went viral in 2007 and can be seen below: