consider fair use would be insufficient to give rise to liability under Section 512(f). Instead,
Lenz must demonstrate that Universal had some actual knowledge that its takedown notice
contained a material misrepresentation.^2925
In the court’s earlier opinion, it had ruled that Section 512(f) liability could attach upon a
showing that the copyright owner acted in bad faith by issuing a takedown notice without proper
consideration of the fair use doctrine. Although a bad requirement would be consistent with
Rossi’s subjective standard, the court noted that neither the DMCA nor the applicable case law
uses the term “bad faith.” Instead, both frame the inquiry in terms of whether the party that
issued the takedown notice had a “good faith belief” that use of the copyrighted work was
unauthorized. Lenz asserted Universal’s procedures for evaluating copyright infringement were
so deficient that Universal willfully blinded itself as to whether any given video might constitute
fair use. The court, citing authority that willful blindness is tantamount to knowledge, ruled that
willful blindness could be sufficient to show an absence of good faith under Rossi’s subjective
standard. In the instant case, because the record was devoid of evidence that Universal
subjectively believed that fair use might apply to Lenz’s video, the court concluded that the only
other avenue available to Lenz was to show that Universal willfully blinded itself to the potential
application the fair use doctrine.^2926
To establish willful blindness, a plaintiff must establish that (1) the defendant
subjectively believed there was a high probability that a fact existed and (2) the defendant took
deliberate actions to avoid learning of that fact. The court noted that a trier of fact could
conclude the second prong of this test was satisfied from the fact that Universal assigned the task
of reviewing YouTube postings for infringing uses of Prince’s songs to a single person who was
not given any information or training about fair use. However, with respect to the first prong,
Lenz had not submitted evidence suggesting that Universal subjectively believed either that there
was a high probability that any given video might make fair use of a Prince composition or that
her video in particular made fair use of Prince’s song “Let’s Go Crazy.” Accordingly, the court
concluded that Lenz was not entitled to summary judgment based on the theory that Universal
willfully blinded itself to the possibility that her video constituted fair use. Nor was Universal
entitled to summary judgment, as it had not shown that it lacked a subject belief that there was a
high probability that any given video might make fair use of a Prince composition.^2927
Finally, the court turned to Universal’s contention that even if its takedown notice did
contain a material misrepresentation sufficient to give rise to Section 512(f) liability, it was
nonetheless entitled to summary judgment because Lenz could not demonstrate that she suffered
any damages. The court rejected Universal’s argument, affirming its previous ruling that had
granted Lenz partial summary judgment with respect to Universal’s third affirmative defense
asserting that Lenz had not suffered any damages. Lenz asserted three categories of damages:
(^2925) Lenz, 2013 U.S. Dist. LEXIS 9799 at 18-19.
(^2926) Id. at 19-21 & n.3.
(^2927) Id. at 21-23. The court rejected Lenz’s argument that fair use was “self-evident” in the video, because a legal
conclusion that fair use was self-evident necessarily would rest upon an objective measure rather than the
subjective standard required by Rossi. Id. at 22-23.