Volume 86, No. 3, Spring 2014

Fair Use Analysis in DMCA Takedown Notices: Necessary or Noxious?

A mother uploads a video of her toddler dancing to a video hosting site with a popular song playing in the background. Prior to the passage of the Digital Millennium Copyright Act (DMCA), the owner of the song playing in the background could initiate an infringement action against either the hosting site or the woman who uploaded the video. Subsequent to the passage of the DMCA, the copyright holder could send the hosting site a notice saying that the content was infringing, and the site would have to take down the content or be liable for copyright infringement.

But what does such a takedown notice require? How thoroughly must a copyright holder examine the alleged infringement before sending a notice? Lenz v. Universal Music Corp. held that the copyright owner had to perform a fair use analysis before sending a notice or he could be held liable for misrepresentation.  This Comment discusses this fair use analysis requirement in the context of the purpose of the DMCA and the effect of such a requirement on copyright holders’ abilities to respond rapidly to instances of infringement on the Internet.