Competition between Amazon’s third-party merchants is notoriously fierce. The online retail giant often finds itself playing the role of referee, banning what it considers unfair business practices (such as offering free products in exchange for perfect reviews, or targeting competitors with so-called “review bombing”). Last month, in the latest round
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).