and that any other communications should be directed to YouTube customer services at a
specified URL. Universal had sent its takedown notice to YouTube’s Copyright Agent, and its
form complied with the requirements of Section 512(c) for a proper DMCA notice. The court
noted that Universal had not pointed to any authority suggesting that its subjective intent, as
expressed in the language quoted above in its takedown notice, had any relevance to the legal
adequacy of the takedown notice for purposes of the DMCA.^2921
The court then elaborated on the relationship between the fair use doctrine and
submission of a DMCA takedown notice. First, the court found sufficient evidence in the record
to establish that Universal issued its takedown notice without considering fair use. The only
person at Universal who reviewed YouTube videos for violations of Prince’s copyrights testified
that he put Lenz’s video on the list for takedown because he recognized the song in the
background immediately, the song was loud and played through the entire video, and the audio
track included a voice asking the children whether they liked the music. He made no mention of
fair use during his testimony and gave no indication that he considered fair use before deciding
whether to place Lenz’s video on the removal list. Universal also admitted in a request for
admission that as of the date of the takedown notice, it had not instructed the employee to
consider fair use during his review of YouTube videos.^2922 The court stated:
While it agrees that requiring a copyright holder to engage in a full-blown fair use
analysis prior to sending a DMCA takedown notice would be inconsistent with
the remedial purposes of the statute, the Court disagrees that it is sufficient for a
copyright holder to consider facts that might be relevant to a fair use analysis
without making any effort to evaluate the significance of such facts in the context
of the doctrine itself. Because the question of whether something constitutes fair
use is a “legal judgment,” proper consideration of the doctrine must include at
least some analysis of the legal import of the facts. The Court concludes that at
minimum, for the reasons discussed at length in its prior order, see Lenz, 572 FR.
Supp. 2d at 1154-56, a copyright owner must make at least an initial assessment
as to whether the fair use doctrine applies to the use in question in order to make a
good faith representation that the use is not “authorized by law.”^2923However, in an interesting further analysis, the court rejected Lenz’s argument that
Universal’s admitted failure to consider fair use before sending its takedown notices was by itself
sufficient to impose liability under Section 512(f). The court noted the Ninth Circuit had held in
Rossi v. Motion Picture Assoc. of America, Inc.^2924 that the “good faith belief” requirement in
Section 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard, and an
unknowing mistake, even if the copyright owner acted unreasonably in making the mistake, is
not sufficient for liability. In view of Rossi, the court concluded that Universal’s mere failure to
(^2921) Id. at 7-10.
(^2922) Id. at 14-15.
(^2923) Id. at *17-18 (citation omitted).
(^2924) 391 F.3d 1000 (9th Cir. 2004).