Copyright Holders Must Consider Fair Use Before DMCA Takedown [pdf]

This is the [in]famous "dancing baby" case in which Universal Music issued a takedown request for a home video of a baby dancing to Prince's Let's Go Crazy. The notice resulted in the video being taken down and then, eventually, put back up after a flurry of DMCA counter-notices. The creator of the video, Lenz, then sued Universal Music for making a bad faith DMCA takedown request (the actual legal claims were for tortious interference--for nominal damages--and for a declaratory ruling of non-infringement).

The rationale here is that the DMCA requires takedown notices to include a "good faith belief" statement that that the targeted work "is not authorized by the copyright owner, its agent, or the law." The opinion essentially holds that if you don't think about fair use, or if you know about a viable fair use defense, then this "good faith belief" statement is actionably false.

Note that this standard is quite high. If the copyright holder can show that it formed a subjective belief that the targeted work is not protected by fair use (even if that belief is crazy), then it's not liable.

So, an interesting opinion, but it's pretty hard to see how a properly-represented defendant could lose under this legal standard.

Edit: Ars Technica Coverage - http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-...