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Fair Use Analysis Before Takedown Notice Is Asked for By Another Federal District
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
In Ouellette, Todd Ouellette had added his own critiques to news clips from Viacom and uploaded the videos to websites like MySpace and YouTube. Viacom sent takedown notices to the website operators. Section 512(f) of the DMCA states a copyright owner “who knowingly materially misrepresents” there is infringing activity will be liable for “any damages ' incurred by the alleged infringer.” In his pro se complaint, Ouellette alleged that Viacom violated '512(f) by misrepresenting in the takedown notices that his uploads were infringing. He also referred to “scanning software” that he claimed Viacom should have had its employees double check to ensure it wasn't “mis-identifying Fair Use videos.” Viacom moved for dismissal on the pleadings.
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