Ninth Circuit Requires Fair Use Evaluation Before Issuing DMCA Take-Down Notices

In a highly anticipated opinion in the so-called "Dancing Babies" case, the Ninth Circuit clarified this week the steps under the Digital Millennium Copyright Act ("DMCA") that copyright holders must take before issuing a "takedown" notice to content platforms such as YouTube.  In a case of first impression, the Court of Appeals held that a copyright holder must analyze whether the allegedly infringing work is a "fair use" before sending the takedown notice.  If the copyright holder fails to do so, that omission will be deemed to raise a triable issue of fact about the copyright holder's subjective good faith belief that the use was unauthorized.  A copyright holder who lacks subjective good faith may be held liable to the party who uploaded the allegedly infringing content for "knowingly materially misrepresent[ing]" infringement.