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March 18th, 2016
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 holder's consideration of fair use "need not be searching or intensive" to satisfy the good faith belief requirement. What remains instead are foreboding statements such as "a copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to . . . liability." The amended decision has thus made it more difficult for a copyright holder to know whether they have undertaken a proper fair use analysis. As a result, many media companies and other holders of copyright portfolios may need to change the way they deal with infringing content on the Internet, particularly if they are not performing a fair use analysis prior to issuing a takedown notice.
If you have any questions about fair use under the Copyright Act, please contact Craig Whitney at (212) 826 5583 or email@example.com, Jeremy Goldman at (212) 705 4843 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Litigation Group.
Other Entertainment Law Alerts
New Federal Budget Revives Section 181
Among the provisions of the Bipartisan Budget Act of 2018 passed by Congress and signed by the President on February 9 is a retroactive extension of Internal Revenue Code Section 181. Read more.
February 15 2018
Section 181 Revived
The new tax law, commonly referred to as the Tax Cuts and Jobs Act (the "Act"), contains some good news for producers of motion pictures, television programs and live theatrical shows (each a "Production") and their investors. Read more.
January 11 2018
Video Game Association Challenges Chicago’s Online Streaming Services Tax
One of the nation's most prominent video game associations has decided to challenge Chicago's controversial "Cloud Tax." Read more.
June 16 2017