DMCA Take-Down Notice: Best Practices

Since 1998, when the Digital Millennium Copyright Act (the "DMCA") was enacted, the DMCA take-down notice has achieved the status of a trusted weapon aimed by copyright owners directly at the unauthorized transmission of their content online. When the Ninth Circuit Court of Appeals ruled on September 14 in Lenz v. Universal Music Group, 2015 U.S. App. LEXIS 16308 ("Lenz"), stating, "We hold that the statute requires copyright holders to consider fair use before sending a takedown notification," it appeared at first glance that the court had turned a simple, point-and-shoot solution into one of those infernal contraptions deployed by Wile E. Coyote. More than one court has observed that "fair use principles are notoriously difficult to apply." See, for instance, Cambridge University Press v. Becker, 863 F.Supp.2d 1190, 1363 (N.D. Ga. 2012) (reversed on other grounds). And the leading treatise on copyright law opines, "Usually, fair use determinations are so clouded, that one has no sure idea how they will fare until the matter is litigated." 4-12 Nimmer on Copyright § 12B.07 (2015). Under such circumstances, what could an individual copyright owner reasonably be expected to do to comply with a requirement such as the one that pertains now in the Ninth Circuit?

The Ninth Circuit did not alter the law, which has always required that, to be effective, a take-down notice must include "[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)(v) (emphasis added). Where the Ninth Circuit broke ground was in specifying that the law at issue was the law of fair use.

While the Lenz court prescribed consideration of the alleged infringer's fair use, it did not enunciate a procedure for such a consideration, nor does the Copyright Act itself. It should be clear that a copyright owner need not demonstrate the alleged infringer's right. "[T]he burden of proving fair use is always on the putative infringer." Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996). All that the law requires is for the copyright holder to form a good faith belief that the complained of use is not authorized. As the Ninth Circuit pointed out more than a decade ago, "the 'good faith belief' requirement ... encompasses a subjective, rather than objective standard," a belief strong enough to withstand that other...