DMCABefore firing off another DMCA takedown notice, copyright owners must first consider fair use. Although consideration of fair use is already required by the DMCA, a U.S. District Judge for the Northern District of California in San Jose has affirmed and clarified the requirement in a ruling involving a long-running tiff over a mom’s YouTube video.



The case arose from this 29-second clip of Stephanie Lenz’s children, dancing around their kitchen while Prince’s Let’s Go Crazy plays in the background. Universal Music Corp. sent a takedown notice pursuant to Section 512(c)(3) of the Digital Millennium Copyright Act. In response, Lenz sued, claiming that Universal misrepresented that her fair-use video violated copyright law.

In the ruling denying cross-motions for summary judgment,  U.S. District Judge Jeremy Fogel in San Jose, Calif., held that copyright owners not only must consider fair use before sending take-down notices, but they also must make a legal determination as to the significance of the facts in the context of fair use. In other words, copyright owners must put some level of thought into who they send takedown notices to and the strengths and weaknesses of a fair-use defense.

Unfortunately for Lenz, the burden of proof for failure to consider fair use is high. Fogel stated that Universal cannot be held accountable for failure to consider fair use unless Lenz can show a jury that Universal “willfully blinded” itself to the possibility of it as a defense. To meet this high standard at trial would not only be difficult but expensive, creating a formidable obstacle for a dispute that’s continued since 2007.

The court also rejected Lenz’s claim for nominal damages for her free speech harms. Lenz argued that the DMCA allows for a broad range of damages for those involved in harmful take-downs. Further, she pointed out that nominal damages are permitted in other free speech contexts. Fogel did not buy that argument.

The court rejected Universal’s argument that the DMCA had no application here because the take-down notice included a disclaimer that it was not sent under the act. Fogel shot this down; Universal used and got the benefit of YouTube’s DMCA process, therefore, it cannot evade its other responsibilities under the act, simply by including a disclaimer in its notice.