DMCA are served by requiring copyright owners at least to form a subjective good faith belief
that the ‘particular use is not a fair use’ before sending the takedown notice.”^2914
Lenz then moved for partial summary judgment with respect to several affirmative
defenses asserted by the defendants.^2915 The defendants’ third affirmative defense was that Lenz
had suffered no damages cognizable under Section 512(f), which provides that a person who
knowingly makes a material misrepresentation in a takedown notice or in a counternotice shall
be liable for “any damages,” including costs and attorneys’ fees, incurred by one injured by the
misrepresentation as the result of the service provider relying on the misrepresentation in
removing the allegedly infringing materials or in replacing removed material. The parties
disagreed about whether the statute recognizes only economic damages. The court ruled that the
use of the phrase “any damages” suggested strong congressional intent that recovery be available
for damages even if they do not amount to substantial economic damages.^2916 All the plaintiff
need show is damages that were “proximately caused by the misrepresentation to the service
provider and the service provider’s reliance on the misrepresentation.”^2917 With respect to
attorneys’ fees and costs, the court ruled that any fees incurred for work in responding to the
takedown notice and prior to the institution of suit under Section 512(f) are recoverable, but
recovery of any other costs and fees post institution of suit is governed by the usual standard
under Section 505. Because there was no genuine issue of material fact as to whether Lenz
incurred at least some damages as defined under the statute, the court granted Lenz’s motion for
summary judgment as to Universal’s affirmative defense of no damages.^2918
In a later opinion upon cross motions for summary judgment, the court had an
opportunity to elaborate further on what consideration of fair use is required of a copyright
holder before issuing a DMCA takedown notice. As an initial matter, the parties disputed
whether the DMCA applied at all in the case. Universal contended that its takedown notice did
not constitute a notification of claimed infringement under Section 512 at all, and thus any
misrepresentations contained therein could not give rise to DMCA liability.^2919 Universal based
its argument on the fact that its takedown notice to YouTube stated: “In addition, our use of
YouTube’s required notice form does not indicate we believe that the above referenced copyright
infringement is within the scope of the Digital Millennium Copyright Act (“DMCA”). Our use
of this form, as required by YouTube, is meant to facilitate YouTube’s removal of the infringing
material listed above and is not meant to suggest or imply that YouTube’s activities and services
are within the scope of the DMCA safe harbor.”^2920 The court rejected this argument, noting that
YouTube’s Terms of Use stated that only DMCA notices should be sent to its Copyright Agent,
(^2914) Lenz v. Universal Music Corp., 2008 U.S. Dist. LEXIS 91890 at 6-7 (N.D. Cal. Oct. 28, 2008) (citations
omitted).
(^2915) Lenz v. Universal Music Corp., 2010 U.S. Dist. LEXIS 16899 (N.D. Cal. Feb. 25, 2010).
(^2916) Id. at 20-26.
(^2917) Id. at 26 (emphasis removed).
(^2918) Id. at 29-30.
(^2919) Lenz v. Universal Music Corp., 2013 U.S. Dist. LEXIS 9799 at 7 (N.D. Cal. Jan. 24, 2013).
(^2920) Id. at 9.