Beyond the Lens of Lenz: Looking to Protect Fair Use During the Safe Harbor Process Under the DMCA

26 Pages Posted: 28 Oct 2014

Date Written: October 1, 2010

Abstract

Lenz v. Universal Music Corp. held that copyright owners are required to evaluate whether allegedly infringing videos make fair use of their copyrighted works — and thereby are not infringing — before they can send DMCA takedown notices to online service providers (“OSPs”) like YouTube. This Note argues that while the Ninth Circuit in Lenz correctly decided that the DMCA must be read to protect fair use content as part of the notice-and-takedown system, more needs to be done to protect fair use content on the Internet. In practice, the application of the DMCA’s safe harbors incentivizes OSPs to accept takedown notices even when copyright owners have not engaged in the fair use inquiry required by Lenz. So although copyright owners must check whether allegedly infringing content constitutes fair use, the DMCA lacks an enforceable mechanism to ensure that they do.

Part I of this Note provides a brief overview of the exclusive rights of copyright owners, the three types of copyright liability, and the fair use doctrine. It also describes the purpose and relevant provisions of the DMCA. Part II explains the need to prevent copyright owners from abusing takedown notices by targeting fair use content. Additionally, it demonstrates that Lenz is not enough to protect fair use content. Part III proposes a solution through a heightened responsibility for OSPs in the DMCA’s notice-and-takedown system. More specifically, this Note argues that courts or Congress should require OSPs to refuse to remove a user’s content when a copyright owner’s takedown notice fails to include a good faith statement that the content is unauthorized.

Suggested Citation

Concepcion, Cattleya M., Beyond the Lens of Lenz: Looking to Protect Fair Use During the Safe Harbor Process Under the DMCA (October 1, 2010). George Mason Law Review, Vol. 18, No. 1, pp. 219-244, 2010. Available at SSRN: https://ssrn.com/abstract=2515627

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