By Abby St. Hilaire

Every week millions of Digital Millennium Copyright Act (DMCA) takedown notices are sent over allegedly infringing works. Recently, the zealous search for infringement led to the rather amusing result of Microsoft filing DMCA takedown notices against… Microsoft.  Well, more accurately, a company hired by Microsoft filed the takedown notices. As amusing as Microsoft’s mistake may be, the company isn’t alone in filing erroneous charges of copyright infringement.

The Digital Millennium Copyright Act  (DMCA) was enacted to create “safe harbor provisions” for Internet content providers, which protect them against copyright infringement claims. The law allows people who allege copyright infringement to send a “takedown notice,” under penalty of perjury, to the content provider, stating the copyright owner “has a good faith belief that use of the material … is not authorized” and requesting that the material be taken down. The DMCA warns that “any person who knowingly materially misrepresents…that material or activity is infringing” may be liable for damages incurred by the alleged infringer. This law has been very effective in helping copyright owners protect their work, in that it created a simple system that allows rights-holders to avoid complicated litigation.

That being said, copyright holders and their representatives often send DMCA takedown notices for content that is covered under the fair use doctrine or does not infringe at all. Stephanie Lenz’s situation may provide one such example.

Half a decade ago, Lenz posted a 29-second YouTube video of her infant son dancing to a song by Prince.  After an employee viewed the video, Universal Music (a music publishing company) sent a DMCA takedown notice, alleging that using the music in the video constituted infringement. Lenz filed a counter notice, but it took six weeks for her video to be restored.

Lenz decided she wanted to fight back. She filed suit claiming a violation of her fair use and free speech rights because Universal Music did not have a good faith belief that her video was an infringing use when it filed its takedown notice.

Lenz’s battle is still unresolved; she, like other non-infringing users, faces an uphill battle in a claim of wrongful DMCA filing. The Ninth Circuit Court of Appeals has interpreted the DMCA as setting a high bar for plaintiffs, analyzing a copyright owner’s good faith belief of infringement under a subjective, rather than objective, standard. Furthermore, the Ninth Circuit has stated that “a copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistakes…. Rather, there must be a demonstration of some actual knowledge…on the part of the copyright owner.” This subjective standard both reflects Congress’ intent and the reality that, in light of the sheer volume of information posted to the Internet each day, it is nearly impossible to completely protect copyrights on the Internet.

The effect of this high standard is that any user who receives a wrongfully filed takedown notice must either (1) prepare to assert facts demonstrating that the copyright owner acted without a good faith belief of infringement or (2) remain content with the DMCA counter notice procedures. As Lenz continues her battle at the Ninth Circuit Court of Appeals, those, like Lenz, who are concerned about the widespread use of DMCA takedown notices should stay tuned to see if this high standard remains the same.