Fair Use. Take-down. Copyright.
Is it Fair Use?
Section 512(c)(3)(A)(v) of the Digital Millennium Copyright Act requires that copyright holders consider, whether content that is perceived as potentially infringing is fair use before they issue a take-down notice. A recent Ninth Circuit case reaffirmed that requirement in Lenz vs. Universal. While a copyright holder is only required to make a subjective assessment, an assessment is nonetheless required before requesting that a website, such as YouTube, Google, Facebook, or Twitter remove allegedly infringing content.
After making such a subjective assessment, what goes into a take-down notice? A take-down notice must contain “[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). Because fair use of copyrighted material is not an infringement of copyright, such use is “authorized by . . . the law.” See id. § 107. Therefore, in order to form “a good faith belief that use of the material in the manner complained of is not authorized by . . . the law,” id. § 512(c)(3)(A)(v), a party must consider the doctrine of fair use.
Subjective assessment of Fair Use.
To comply with the law, a copyright holder is only required to form a subjective assessment, which does not require investigation of the allegedly infringing content. The assessment does not have to be accurate, it must only be performed. If a copyright holder fails to consider fair use before sending a take-down notification, gives lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary, is subject to liability.