In July, this author wrote about Lenz v. Universal which, at the time, was pending before the 9th Circuit.  On September 14, 2015 the 9^th Circuit came down with a ruling which answered whether a copyright owner must consider fair use before proceeding with a takedown notice under the DMCA, and, if so, what are the consequences for failing to do so.

The facts of Lenz are fairly simple. Lenz posted to YouTube a very short video of her young child dancing to a Prince song playing in the background. At the time, Universal Music Publishing was managing Prince’s music publishing. An attorney at Universal manually reviewed the posting but acknowledged that he did not consider whether the Lenz video was fair use. Universal sent a DMCA takedown notice to YouTube and YouTube removed access to the video. Most normal takedown situations end there; however, Lenz was upset, and, after trying and failing to remedy the situation herself, sought the aid of attorneys at the Electronic Frontier Foundation.
Continue Reading Ninth Circuit Clarifies Copyright Holder’s Responsibility When Sending A Takedown Notice Under The DMCA