Stephanie Lenz posted a homemade video on YouTube.com, depicting her toddler son dancing in his walker, with the song "Let’s Go Crazy" by "the artist professionally known as Prince" playing in the background. Several months later, attorneys for Universal Music, owner of the copyright in the recording, sent a takedown notice pursuant to § 512(c) of the Digital Millennium Copyright Act, which requires that the notice include among other things "a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." The video was promptly removed. Lenz responded with a DMCA counter-notification, and the video was re-posted several weeks later.

Lenz then instituted suit against Universal for damages and attorney fees under § 512(f) of the DMCA, alleging that in issuing the takedown notice, Universal lacked the statutorily required "good faith belief" that her use of the song was infringing. In the latest ruling in the action, Judge Jeremy Fogel in the Northern District of California ruled that the takedown provisions of DMCA § 512(c) require a copyright owner to "consider the fair use doctrine in formulating 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.’" Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. Aug. 20, 2008) (emphasis added).

This is a ruling that may concern copyright owners seeking to utilize the DMCA takedown provisions to protect their content from unauthorized online exploitation. At the least the opinion imposes an extra step in the preparation of a DMCA takedown notice, at worst it puts copyright owners at peril of guessing wrong as to how a court will view their "consideration" process after the fact.

As the court itself recognized, determinations of fair use are notoriously fact-sensitive and the views of various courts on the merits of such claims are unpredictable. The court’s solution to that problem is to state that concerns based on such uncertainty are "overstated" because "there are likely to be few [cases] in which a copyright owner’s determination that a particular use is not fair use will meet the requisite standard of subjective bad faith required to prevail in an action for misrepresentation under 17 U.S.C. § 512(f)."

The court’s further guidance on the fair use consideration process consists of the following:

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review. As the Ninth Circuit observed in Rossi, a full investigation to verify the accuracy of a claim of infringement is not required. Rossi, 391 F.3d at 1003-04.

The difficulty of making fair use determinations is demonstrated by the history of the Lenz case itself. Lenz first sought a declaratory judgment that her video consisted "self-evident non-infringing fair use." That Lenz’s use was fair was not "self-evident" to the court, which dismissed Lenz’s complaint (with leave to amend) on the ground that she had failed to allege why her use was self-evidently fair. Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. Apr. 8, 2008).

Although the court’s suggestion that few cases will meet the standard of subjective bad faith in consideration of the fair use issue should be some comfort to copyright owners, the opinion leaves open many questions, including the following: how does a copyright owner establish that it "considered" fair use? The opinion does not begin to suggest an answer to that question.