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Fair Use Analysis Before Takedown Notice Is Asked for By Another Federal District

By Stan Soocher

Copyright fair use has been procedurally enshrined as an affirmative defense to infringement claims. But in 2009, the U.S. District Court for the Northern District of California startled copyright owners in ruling that, to comply with the “good faith” requirement of '512(c) of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '512 (http://1.usa.gov/vvSvKc), such content proprietors must conduct a fair-use copyright analysis of unlicensed online uses of their works prior to sending a takedown notice to Internet Service Providers (ISPs). Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D.Calif. 2008). Now a federal magistrate for the U.S. District Court for the District Montana has adopted the Lenz fair use rule. Ouellette v. Viacom International Inc., 10-133. (Both the California and Montana federal district courts reside within the U.S. Court of Appeals for the Ninth Circuit.)

'Good Faith' Is Subjective

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