9th Circuit: Fair Use Must Be Weighed Before Issuing DMCA Notice

9th Circuit: Fair Use Must Be Weighed Before Issuing DMCA Notice

SAN FRANCISCO — In a decision of particular interest to adult content and tube site owners, the 9th U.S. Circuit Court of Appeals has found that copyright owners must consider the fair use doctrine before sending Digital Millennium Copyright Act takedown notices to online hosts.

The ruling issued today by a three-judge panel could change the shape and form of fair use and copyright takedown notices after it found that Universal Music Group's view of fair use is flawed.

The panel affirmed a lower court’s decision for summary judgment in an action under the Digital Millennium Copyright Act alleging that Universal violated 17 U.S.C. § 512(f) by misrepresenting in a takedown notification that plaintiff Stephanie Lenz’s home video constituted an infringing use of a portion of a Prince composition.

The appeals court said copyright owners like Universal can only send takedown notices if they’ve come to a good faith conclusion that the targeted upload is not a protected fair use of the copyrighted work.

The appellate ruling “is a pretty big deal for content companies and tube sites alike,” adult industry attorney Marc Randazza of Randazza Legal Group told XBIZ.  

“When you send a DMCA notice, you need to be careful. Fair use is an important exception to copyright infringement — it allows copyright to act as the engine of further expression,” Randazza said.

“If a content producer sends a DMCA notice without considering fair use, licenses or other reasons that the content should not come down, that content producer is going to be pretty upset when all of a sudden the tube site has a claim against them.

“So, to content producers, I say make sure you consider all these issues before sending DMCA notices. To other lawyers, I say to do the same doubly. To tube sites: This can be a way to push back at content producers.”

With the 9th Circuit’s decision, Universal now must face a trial over whether it wrongfully sent a copyright takedown notice over a 29-second YouTube video of Lenz’s toddler dancing to the Prince song "Let's Go Crazy" blaring in the background.

Lenz, who acquired pro bono counsel from the Electronic Frontier Foundation, sued Universal in 2007, arguing that the media giant’s takedown practices violated the DMCA. The litigation was known as the “dancing baby case.”

“All in all, it is a good decision — it just makes people have to play by the rules, respect copyright, but also respect freedom of expression,” Randazza said.

View today's ruling

Related:  

Copyright © 2024 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

Eva Maxim, Katrina Colt Headline 'Cumming to LA' From Cherry Kiss

Eva Maxim and Katrina Colt star with Vince Karter in 2021 XBIZ Europas Female Performer of the Year Cherry Kiss' "Cumming to L.A.," from Evil Angel.

AEBN Celebrates 25th Anniversary

The Adult Entertainment Broadcast Network (AEBN) is celebrating its 25th year in business this week.

Nebraska Legislature Passes Republican's Age Verification Bill With No Votes Against It

Nebraska’s unicameral legislature has passed the state’s version of the age verification bills being sponsored around the country by anti-porn religious conservative activists.

Performers in Meta Blacklisting Lawsuit Seek to Preserve Antitrust Claims

Adult Performance Artists Guild board officers Alana Evans, Kelly Pierce and Ruby have informed a California court that, although they want to drop their lawsuit claiming that Meta conspired with OnlyFans to blacklist rival premium fan platforms’ talent, they may still have antitrust claims that they may pursue in the future.

Skylar Snow Headlines 'Infidelity 4' From Sweet Sinner

Skylar Snow toplines "Infidelity 4," the latest release from Mile High Media studio brand Sweet Sinner.

Serenity Cox Stars in 'Enjoy It' From MILFY

Serenity Cox stars with Alberto Blanco in "Enjoy It," from Vixen Media Group studio imprint MILFY.

Melissa Stratton Stars in Finale of Wicked's 'So Extra'

Melissa Stratton and Robby Apples star in the final scene from Wicked Pictures' "So Extra."

BiPhoria Drops Jim Powers' 'Saying GoodBi'

BiPhoria has released director Jim Powers' "Saying GoodBi."

FSC, Co-Plaintiffs to Ask US Supreme Court to Review Constitutionality of Texas Age Verification Law

Free Speech Coalition (FSC) and its co-plaintiffs in the challenge to Texas’ controversial age verification law have filed a petition before the United States Court of Appeals for the 5th Circuit asking to stay its recent upholding the law because they intend to appeal to the U.S. Supreme Court to review the law’s constitutionality.

Jade Venus, Kasey Kei Star in 'Trans Rave' From GenderX

Jade Venus and Kasey Kei star in "Trans Rave" from GenderX, directed by Jim Powers.

Show More