Ruling Maintains That Fair Use Must Be Considered Before Issuing Copyright Takedown Notices

The Ninth Circuit declined to review its earlier opinion in Lenz v. Universal Music Corp. that copyright holders must consider fair use before seeking to remove allegedly infringing content from websites such as YouTube and Facebook. The law in California and other Ninth Circuit states remains that, prior to issuing a DMCA takedown notice, a copyright holder must have a subjective, good faith belief that allegedly infringing content is not making fair use of the copyrighted work. Our prior discussion of that important decision is here.

The original September 14, 2015 opinion offered some guidance on what would satisfy the good faith belief requirement — including the use of computer algorithms that automatically identify when nearly the entirety of a copyrighted work is used. The amended March 17, 2016 decision, however, has stripped most of that guidance away. In particular, the court removed the discussion of computer algorithms and the notion that a copyright