Jason Bloom in Bloomberg BNA: Fair Use Must Be Considered Before DMCA Notices


A copyright holder must consider whether an unapproved use of its work is a fair use before issuing a takedown notice under the Digital Millennium Copyright Act, the U.S. Court of Appeals for the Ninth Circuit ruled Sept. 14.

The court said that a rights holder must have a good faith belief that an allegedly infringing use of its work is not otherwise allowed under the doctrine of fair use before requesting that an Internet hosting service take it down, affirming a ruling by a federal district court...

It said that the standard for determining “good faith” in this situation is “willful blindness."

That is, a plaintiff must establish that a defendant subjectively believed there was a high probability a fact exists, and that the defendant took deliberate actions to avoid learning of that fact, to prove bad faith.

“It is not clear what level of analysis is now required, but it is likely something more than a blanket statement and something less than an opinion letter from outside counsel. Some consideration of the matter by counsel (and a recitation of that in the takedown notice) should probably suffice,” Jason P. Bloom of Haynes & Boone LLP, Dallas, said in an e-mail message to Bloomberg BNA.

Excerpted from Bloomberg BNA. To read the full article, click here.

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