Copyright Holders Must Evaluate Fair Use Before Sending A Takedown Notice

Section 512(c) permits service providers, e.g., YouTube or Google, to avoid copyright infringement liability for storing users' content if—among other requirements—the service provider "expeditiously" removes or disables access to the content after receiving notification from a copyright holder that the content is infringing. 17 U.S.C. § 512(c). On Monday, September 14, 2015, the Ninth Circuit Court of Appeals addressed the question of "whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the Digital Millennium Copyright Act (DMCA) by declining to first evaluate whether the content qualifies as fair use." It unequivocally ruled "yes." Before sending a takedown notice, the copyright holder must subjectively decide that the use of the copyrighted materials is not a 'fair use.'