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 © 2026 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

Lexi Lore Makes Her Vixen Debut

Lexi Lore has made her debut for Vixen Media Group's flagship imprint alongside Parker Ambrose in the studio's latest release.

Goddess Lilith Launches New Official Website Through PAYSITE

Goddess Lilith has rolled out her new official site, QueenGoddessLilith, through PAYSITE.

Penthouse Names Madiiitay as October's 'Pet of the Month'

Penthouse Magazine has named Seattle content creator and professional modeling newcomer Madiiitay as Pet of the Month for October.

Pineapple Support to Host 'Reclaiming Intimacy' Support Group

Pineapple Support is hosting a free online support group for performers with trauma-impacted intimacy issues.

Wendy Marvell, Shadow Dimitri Make Their Immoral Debuts

Wendy Marvell and newly crowned XMA Europe Male Performer of the Year Shadow Dimitri have made their debuts for Immoral Productions alongside Marvell's husband Matt Bird, Irish Bull, John Price, and studio honcho "Porno Dan" Leal.

Ofcom Cites Web Prime, Porntrex for Alleged AV Violations

U.K. media regulator Ofcom on Tuesday notified two operators of adult websites of the agency’s provisional determination that the companies have failed to comply with provisions of the Online Safety Act.

Mick Blue Tops TT5 Podium at NASA Championships

Mick Blue took first place this past weekend in the national Time Trial 5 (TT5) race at the 2026 NASA Championships at Sebring International Raceway.

FSC: Utah Excise Tax on Adult Content Goes Into Effect October 1

The Free Speech Coalition (FSC) has issued an advisory that the Utah Excise Tax goes into effect tomorrow.

Alison Rey Makes Her Studio Anal Debut

Alison Rey has performed her first anal alongside Small Hands in the latest release from Adult Time, directed by Casey Calvert.

Show More