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

Rachel Rampage Makes Her Brazzers Debut

Rachel Rampage has made her Brazzers debut alongside multi-XMAs winner Mick Blue in the studio's latest release, titled "Right Down To Cock Sucking Business."

California Governor Signs Bill Limiting CIPA Claims

Governor Gavin Newsom has signed into law a bill to narrow the scope of the California Invasion of Privacy Act (CIPA), to prevent abusive lawsuits targeting online businesses, including adult websites.

Jennifer White, Jessi Rae Lead Latest From Blacked

Reigning XMAs Female Performer of the Year Jennifer White stars alongside Jessi Rae and Isiah Maxwell in the latest release from Vixen Media Group studio imprint Blacked.

Evil Angel Drops 'My Fantasy With Rocco'

Evil Angel has released the latest title from director Rocco Siffredi, titled "My Fantasy With Rocco."

California Enacts Stricter UGC Rules for Adult Sites

Governor Gavin Newsom has signed into law a bill to impose tighter compliance standards for user-generated content (UGC) on adult websites accessible in California.

UK Aims to Begin Enforcing 'Choking' Ban Before Year's End

The U.K. will soon begin enforcement of a new law criminalizing depictions of “non-fatal strangulation” in adult content, according to a Ministry of Justice official.

XBIZ LA Conference Website Now Live, Registration Open

The event website for the XBIZ LA conference is now live, offering comprehensive information about the upcoming event, taking place Jan. 7-10 at the JW Marriott L.A. LIVE.

CrakRevenue Launches Mobile App for Real-Time Affiliate Alerts

CrakRevenue has launched Aff Companion, a mobile app that sends affiliates real-time notifications about clicks, conversions, and revenue.

ERIKALUST Releases 'Close Up'

Spookie Shelbie and Delfine Dahlia star in the latest release from ERIKALUST, titled “Close Up.”

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.

Show More