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17 U.S.C.S. § 512(f) requires copyright holders to consider fair use before sending a takedown notification; failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.
Plaintiff Stephanie Lenz filed suit under 17 U.S.C. § 512(f)—part of the Digital Millennium Copyright Act ("DMCA")—against Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group (collectively "Universal"). She alleged that Universal misrepresented in a takedown notification that her 29-second home video (the "video") constituted an infringing use of a portion of a composition by the Artist known as Prince, which Universal insisted was unauthorized by the law. According to Lenz, the copyright holders were abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualified as fair use. Both parties filed motions for summary judgment, which the district court denied.
The court held that the district court properly denied the parties' cross-motions for summary judgment in plaintiff’s action against a copyright owner under the Digital Millennium Copyright Act because 17 U.S.C.S. § 512 unambiguously contemplated fair use as a use authorized by the law and required copyright holders to consider whether potentially infringing material was a fair use of a copyright under 17 U.S.C.S. § 107 before issuing a takedown notification. However, the plaintiff could not proceed to trial under a willful blindness theory because she did not show that the defendants subjectively believed there was a high probability that the video constituted fair use.