DMCA Take-Down Notice: Best Practices

Since 1998, when the Digital Millennium Copyright Act (the "DMCA") was enacted, the DMCA take-down notice has achieved the status of a trusted weapon aimed by copyright owners directly at the unauthorized transmission of their content online. When the Ninth Circuit Court of Appeals ruled on September 14 in Lenz v. Universal Music Group, 2015 U.S. App. LEXIS 16308 ("Lenz"), stating, "We hold that the statute requires copyright holders to consider fair use before sending a takedown notification," it appeared at first glance that the court had turned a simple, point-and-shoot solution into one of those infernal contraptions deployed by Wile E. Coyote. More than one court has observed that "fair use principles are notoriously difficult to apply." See, for instance, Cambridge University Press v. Becker, 863 F.Supp.2d 1190, 1363 (N.D. Ga. 2012) (reversed on other grounds). And the leading treatise on copyright law opines, "Usually, fair use determinations are so clouded, that one has no sure idea how they will fare until the matter is litigated." 4-12 Nimmer on Copyright § 12B.07 (2015). Under such circumstances...