Taking on Internet Take-Down Notices

The Digital Millennium Copyright Act (DMCA) established a mechanism for copyright owners to request the removal of unauthorized copies of their material from the Internet by sending “take-down” notices to sites on which their material is posted. Beginning in 2003, recording companies made liberal use of this mechanism to remove non-commercial postings on sites like MySpace and YouTube. However, when the procedure was used to take down a 29 second video that Stephanie Lenz had taken, showing her children dancing to the music of Prince’s Let’s Go Crazy, Lenz fought back, claiming that her video was protected by fair use and that the publisher’s take-down notice constituted a misrepresentation of copyright, making the publisher liable for damages. The publisher moved to dismiss the suit on the ground that it was not required to consider a fair use defense before sending a take-down notice. In Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. California August 20, 2008), the court denied the publisher’s motion, holding that a copyright owner must consider fair use before issuing a take-down notice.