Copyright holders must consider fair use exceptions before sending DMCA takedown notices
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Today, the United States Court of Appeals for the Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. It also rejected Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss. Universal will now have to face a trial over whether it "knowingly misrepresented" its "good faith belief the video was not authorized by law." The judges have made clear that copyright owners "must consider fair use before sending a takedown notification" before forming that "good faith belief." The fair use consideration doesn't have to be "searching or intensive," Tallman clarified. But it can't be trivial, either.
Today, DMCA notices are automated, and large copyright holders demand that thousands of links be removed at a time. Internet sites like Google remove millions of URLs each year in response to these massive DMCA notices. While today's ruling undoubtedly strengthens EFF's view of fair use, it's unlikely to change much about the millions of takedown notices now being sent each year to Internet intermediaries.