Fair Use. Take-down. Copyright.

Fair Use. Copyright.

Fair Use. 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.

Take-down. Copyright.

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.

That’s it for now. Do you have an opinion about this? Join my conversation on my Facebook Law Page, Google+ page, Twitter feed, or in one of my LinkedIn group discussions.

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