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 © 2025 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

Violet Myers, Megan Faith Star in Latest From Slayed

Reigning XMAs Premium Social Creator of the Year Violet Myers stars with Megan Faith in the latest release from Vixen Media Group studio imprint Slayed.

Coco Bae Returns to Brazzers

Coco Bae stars with Danny D. in the latest release from Brazzers, titled “The Cock Collector.”

GirlsDoPorn Owner Michael Pratt Pleads Guilty to Sex Trafficking

Michael Pratt, former owner of the rogue website GirlsDoPorn, pleaded guilty in the U.S. District Court for the Southern District of California on Thursday to sex trafficking and conspiracy to commit sex trafficking charges, according to a report by City News Service.

Penthouse Names Kira Shine June's 'Pet of the Month'

Penthouse Magazine has named model Kira Shine as Pet of the Month for June.

Master Nico Relaunches Site Through YourPaysitePartner

Master Nico has relaunched his official website through YourPaysitePartner (YPP).

Jade Greene Makes Her Reality Kings Debut

Jade Greene has made her Reality Kings debut alongside multi-XMAs winner Mick Blue in "Ski Boat Skeet."

Federal Judge Grants Partial Halt of Florida AV Law

The United States District Court for the Northern District of Florida, Tallahassee Division, has granted a preliminary injunction against HB 3, the state's age verification law, as a lawsuit filed by two online trade associations challenging the law makes its way through the courts.

Aylo Releases Statement on Suspending Access to Pornhub in France

Technology and media company Aylo, which operates adult sites including Pornhub, YouPorn, and Redtube, has released a public statement regarding its decision to block access to its sites in France.

Vicki Chase Stars in Dorcel's 'M.I.L.F.S. Vol. 2'

Vicki Chase headlines the latest feature from Dorcel, titled “M.I.L.F.S. Vol. 2.”

Anastasia Doll Headlines 'All Girl Sex Addict' From Harmony

Anastasia Doll stars in the latest title from Harmony Films, “All Girl Sex Addict.”

Show More