Intellectual Property Law

New Matter WINTER 2015, Volume 40, Number 4

DMCA’s § 512(f) Remains Toothless in Light of Lenz Decision

Pierce Law Group LLP

We live in a time when anyone with a smartphone and a social media app can become a content creator. Frequently, these content creators (such as video artists, animators, and musicians who post their content on the Internet) utilize pre-existing copyrighted works of corporate content rightsholders (such as record labels and movie studios), invoking the doctrine of fair use to justify what would otherwise be misappropriation in violation of copyright law.1 For example, a video artist may edit together existing footage owned by a film studio in order to create a parody that is protected by the fair use doctrine. Or an appropriation artist may use Photoshop to combine elements of images owned by a company to create a work of criticism that is protected by the fair use doctrine.

These content creators often complain that corporate content rightsholders misuse and abuse the takedown provisions of the Digital Millennium Copyright Act (DMCA) by issuing meritless takedowns in order to remove content that they don’t like from the Internet, effectively silencing the content creators. These kinds of takedowns have become increasingly problematic in recent years. Moreover, many sites like YouTube now offer content creators opportunities to monetize content, but the DMCA takedown process provides corporate content rightsholders a quick and easy way to shut off monetization (or, alternatively, to divert the proceeds from monetized content to themselves). As a result, there has been an increasing need for clarity regarding 17 U.S.C. Section 512(f), the part of the statute that prohibits abuse of the DMCA takedown process.2

The 2004 Ninth Circuit case, Rossi v. Motion Picture Association of America, touched on this matter, providing a rough framework for how courts approach Section 512(f) claims, but many were hoping that a subsequent Ninth Circuit case, Lenz v. Universal Music Corp. et al., would provide some real clarity on the matter.3 Unfortunately, the recent decision in Lenz had little to offer by way of clarity, and in some ways, may have made it even more difficult for content creators who have had their content wrongly removed from the Internet to prevail in Section 512(f) claims.

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