Impact | Business Risk Management Blog

9th Circuit finds copyright holders must consider fair use or risk liability before issuing takedown notices under the DMCA.

In a matter of first impression, the 9th U.S. Circuit Court of Appeals ruled on Sept. 14, 2015, that copyright holders must consider fair use before issuing a takedown notice under the Digital Millennium Copyright Act (DMCA). The court also ruled that the question of whether a copyright holder properly considered fair use is a subjective test for the trier of fact. A copyright holder will incur liability if it lacked a subjective good faith belief that the challenged use did not constitute a fair use.