Last year, our copyright law frim sponsored the interview "Digital Millennium Lawsuit Against Universal Music Publishing" with Marcia Hoffman of the Electronic Frontier Foundation. The district court recently ruled that Universal Music was obligated to assess the fair sue defense before sending a DMCA take-down notice. If this court's ruling becomes a trend, copyright holders who use software systems to automate take-down notices will be at risk for damages and an award of attorney fees in cases where the fair use defense prevails.
Assess fair use before demanding take-down, warns US court | OUT-LAW.COM
Judge Fogel noted that the issue of whether or not copyright owners had to make a judgement on fair use had never been directly decided in the courts. He said that copyright owners and law firms must decide if fair use exemptions apply before taking action.
"In order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright," he said.
"An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general," he said.