Lenz v. Universal Music Corp.: Fair Use and DMCA Good Faith

In Lenz v. Universal Music Corp., the U.S. Court of Appeals for the Ninth Circuit ruled that copyright holders must consider whether a use qualifies as fair use before sending a takedown notice under the Digital Millennium Copyright Act. The 2015 decision was the first appellate ruling to treat fair use as a right authorized by law rather than only a defense raised after an infringement suit, and it opened the door to liability for takedown notices sent without that analysis. In practice, though, the standard the court adopted is subjective, and that has sharply limited how often the rule actually helps content creators.¹

The Dispute Behind the Case

In February 2007, Stephanie Lenz posted a 29-second YouTube clip of her toddler bouncing around the kitchen while Prince’s “Let’s Go Crazy” played faintly in the background. Universal Music Publishing Group, which controlled the rights to Prince’s catalog, sent YouTube a DMCA takedown notice, and YouTube pulled the video.¹

Lenz filed a counter-notification. YouTube eventually restored the video, and Lenz, represented by the Electronic Frontier Foundation, sued Universal later that year under Section 512(f) of the DMCA. That provision makes it unlawful to knowingly misrepresent that material is infringing in a takedown notice, and it allows the person whose content was removed to recover damages, costs, and attorney fees.² Her theory was simple: Universal never considered whether her clip was fair use, so it could not have honestly believed the video was infringing when it demanded removal. Universal argued it had no obligation to weigh fair use at all before issuing a takedown.

What the Ninth Circuit Held

In September 2015, the Ninth Circuit sided with Lenz on the core legal question. A valid DMCA takedown notice requires the sender to have a good faith belief that the use is not authorized by law. Fair use, the court reasoned, is a use authorized by the Copyright Act itself. A copyright holder who never considers fair use therefore cannot honestly form the belief the statute requires.³

The court framed fair use as an affirmative right rather than a defense. That framing does real work: it means the fair use analysis has to happen at the front end, before a notice goes out, not only after litigation begins.¹

The Subjective Good Faith Standard

The ruling comes with a significant catch. The Ninth Circuit adopted a subjective standard for the good faith requirement. A copyright holder does not have to reach the correct conclusion about fair use. The analysis does not even have to be reasonable. It just has to actually happen.¹

The court warned that mere “lip service” would not satisfy the requirement, but the bar for compliance is low. A content creator challenging a takedown has to show that the copyright holder never actually considered fair use, or deliberately avoided doing so. That is difficult evidence to produce, because it turns on someone else’s internal thought process. A rights holder who documents any fair use review, however cursory, becomes hard to reach under Section 512(f).

Willful Blindness

The court left one narrow additional path. The willful blindness doctrine can apply to Section 512(f) claims: a copyright holder who suspected content was probably fair use but consciously avoided confirming it can be held liable. The court found Universal was not willfully blind here, because willful blindness requires suspecting something is true and then avoiding confirmation. Universal skipped the analysis entirely, which the court treated as a different failing.¹

Damages Available When a Takedown Was Wrong

The Ninth Circuit also addressed what a wrongly targeted user can recover. The court held that nominal damages are available under Section 512(f) even when the person cannot quantify a specific financial loss.¹ That mattered for Lenz, who was not earning money from a home video. The statute itself also allows recovery of costs and attorney fees, which in a multi-year case is often the most meaningful form of relief.²

How the Case Ended and Where the Rule Applies

Both sides asked the U.S. Supreme Court to take the case. The Court declined in June 2017, leaving the Ninth Circuit’s decision intact. The parties settled privately in 2018, eleven years after Lenz first sued. The terms were not disclosed.

Because the Supreme Court never weighed in, Lenz is binding only in the Ninth Circuit, which covers California, Oregon, Washington, and six other western states and territories. No other federal appeals court has squarely decided whether copyright holders must consider fair use before sending a DMCA takedown notice, so the question remains unsettled elsewhere.

What to Do If Your Content Is Taken Down

If a platform removes your content in response to a DMCA notice, federal law lets you file a counter-notification asking to have it restored. A valid counter-notification must include your signature, identification of the removed material, a statement under penalty of perjury that you believe the removal was a mistake, and your consent to the jurisdiction of a federal court.²

Once the platform receives a valid counter-notification, it forwards the notice to the party who requested the takedown. The platform must restore the content within 10 to 14 business days unless the copyright holder files a lawsuit during that window.² The perjury statement is not a formality. Filing a false counter-notification carries its own civil liability.

Fair use itself is defined by the Copyright Act and turns on four factors: the purpose and character of the use, the nature of the original work, the amount used, and the effect on the market for the original.⁴ If you believe your use fits, the counter-notice process is the mechanism Lenz was built around. The decision does not stop bad takedowns from happening, but it did establish that a copyright holder who sends one without ever thinking about fair use has, at least in the Ninth Circuit, violated the DMCA.

1
Justia. Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. 2015)
2
Office of the Law Revision Counsel. 17 U.S.C. 512 – Limitations on Liability Relating to Material Online
3
United States Court of Appeals for the Ninth Circuit. Lenz v. Universal Music Corp.
4
Office of the Law Revision Counsel. 17 U.S.C. 107 – Limitations on Exclusive Rights: Fair Use