Ninth Circuit cites Professor Loren in copyright decision

The Ninth Circuit Court of Appeals issued an important copyright ruling recently holding that before a copyright owner sends a “takedown” notice of something posted on the internet, the copyright owner must consider the fair use rights of an individual who posted it. In the opinion, the court cited an article written by Intellectual Property Law Professor Lydia Loren.

The case involves a 29 second home video posted to YouTube. In the video the song “Let’s Go Crazy” by the artist known as Prince can be heard playing in the background.  A takedown notice was sent to YouTube and YouTube promptly removed the video.  Frustrated by the removal, Lenz sued asserting that the copyright owner had violated the Digital Millenium Copyright Act when it failed to consider whether the video made a “fair use” of the Prince’s song. In concluding that copyrights owners must consider fair use before sending a takedown notice the court rejected the argument that fair use is only relevant as an affirmative defense and need not be part of an analysis of whether the work is an infringement. The court cited Professor Loren’s article, Fair Use: An Affirmative Defense?, published in the Washington Law Review, to support its conclusion.  Quoting from Loren’s article, the court stated that “Congress did not intend fair use to be an affirmative defense—a defense, yes, but not an affirmative defense.” As a defense, and not an affirmative defense, the fair use question is part of the overall determination of whether the work is an infringement. The Ninth Circuit held that the failure of a copyright holder to consider fair use before sending a takedown notice raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.