Dancing Baby 9th Circuit Ruling

Case: 13-16106, 09/14/2015, ID: 9680698, DktEntry: 84-1, Page 1 of 34
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
STEPHANIE LENZ,
Plaintiff-Appellee/
Cross-Appellant,
v.
UNIVERSAL MUSIC CORP.;

UNIVERSAL MUSIC PUBLISHING INC.;
UNIVERSAL MUSIC PUBLISHING
GROUP INC.,
Defendants-Appellants/
Cross-Appellees.
Nos. 13-16106
13-16107
D.C. No.
5:07-cv-03783JF
OPINION
Appeal from the United States District Court

for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
July 7, 2015San Francisco, California
Filed September 14, 2015
Before: Richard C. Tallman, Milan D. Smith, Jr.,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Milan D.
Smith, Jr.
LENZ V. UNIVERSAL MUSIC

SUMMARY*
Digital Millennium Copyright Act
The panel affirmed the district courts denial of the

parties cross-motions for summary judgment in an action
under the Digital Millennium Copyright Act alleging that the
defendants violated 17 U.S.C. 512(f) by misrepresenting in
a takedown notification that the plaintiffs home video
constituted an infringing use of a portion of a Prince
composition.
The panel held that the DCMA requires copyright holders
to consider fair use before sending a takedown notification,
and that failure to do so raises a triable issue as to whether the
copyright holder formed a subjective good faith belief that the
use was not authorized by law. Regarding good faith belief,
the panel held that the plaintiff could proceed under an actual
knowledge theory. The panel held that the willful blindness
doctrine may be used to determine whether a copyright holder
knowingly materially misrepresented that it held a good faith
belief that the offending activity was not a fair use. The
plaintiff here, however, could not proceed to trial under a
willful blindness theory because she did not show that the
defendants subjectively believed there was a high probability
that the video constituted fair use. The panel also held that a
plaintiff may seek recovery of nominal damages for an injury
incurred as a result of a 512(f) misrepresentation.
This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
Judge M. Smith concurred in part, dissented in part, and

concurred in the judgment. Dissenting from Part IV.C of
the majority opinion, addressing good faith belief, he
questioned whether 512(f) directly prohibits a party from
misrepresenting that it has formed a good faith belief that a
work is subject to the fair use doctrine. He wrote that the
plain text of the statute prohibits misrepresentations that a
work is infringing, not misrepresentations about the partys
diligence in forming its belief that the work is infringing.
Judge M. Smith disagreed that there was any material dispute
about whether the defendants considered fair use, and he
wrote that the willful blindness doctrine does not apply
where, as here, a party has failed to consider fair use and has
affirmatively misrepresented that a work is infringing.
COUNSEL
Kelly M. Klaus (argued) and Melinda LeMoine, Munger,
Tolles & Olson LLP, Los Angeles, California, for
Defendants-Appellants/Cross-Appellees.
Corynne McSherry (argued), Cindy Cohn, Kurt Opsahl,
Daniel K. Nazer, and Julie Samuels, Electronic Frontier
Foundation, San Francisco, California; Ashok Ramani,
Michael S. Kwun, and Theresa H. Nguyen, Keker & Van
Nest LLP, San Francisco, California, for PlaintiffAppellee/Cross-Appellant.
Steven Fabrizio and Scott Wilkens, Jenner & Block LLP,
Washington, D.C., for Amicus Curiae Motion Picture
Association of America, Inc.
Jennifer Pariser, Of Counsel, Recording Industry Association

of America, Washington, D.C.; Cynthia Arato, Marc Isserles,
and Jeremy Licht, Shapiro, Arato & Isserles LLP, New York,
New York, for Amicus Curiae Recording Industry
Association of America.
Joseph Gratz, Durie Tangri LLP, San Francisco, California,
for Amici Curiae Google Inc., Twitter Inc., and Tumblr, Inc.
Marvin Ammori and Lavon Ammori, Ammori Group,
Washington, D.C., for Amicus Curiae Automatic, Inc.
Julie Ahrens and Timothy Greene, Stanford Law School
Center for Internet and Society, Stanford, California, for
Amici Curiae Organization fo Transformative Works, Public
Knowledge, and International Documentary Association.
OPINION
TALLMAN, Circuit Judge:
Stephanie Lenz filed suit under 17 U.S.C. 512(f)part
of the Digital Millennium Copyright Act (DMCA)
against Universal Music Corp., Universal Music Publishing,
Inc., and Universal Music Publishing Group (collectively
Universal). She alleges Universal misrepresented in a
takedown notification that her 29-second home video (the
video) constituted an infringing use of a portion of a
composition by the Artist known as Prince, which Universal
insists was unauthorized by the law. Her claim boils down to
a question of whether copyright holders have been abusing
the extrajudicial takedown procedures provided for in the
DMCA by declining to first evaluate whether the content
qualifies as fair use. We hold that the statute requires

copyright holders to consider fair use before sending a
takedown notification, and that failure to do so raises a triable
issue as to whether the copyright holder formed a subjective
good faith belief that the use was not authorized by law. We
affirm the denial of the parties cross-motions for summary
judgment.
I
Founded in May 2005, YouTube (now owned by Google)
operates a website that hosts user-generated content. About
YouTube, YouTube.com, https://www. youtube.com/yt/about/
(last visited September 4, 2015). Users upload videos
directly to the website. Id. On February 7, 2007, Lenz
uploaded to YouTube a 29-second home video of her two
young children in the family kitchen dancing to the song Lets
Go Crazy by Prince.1 Available at https://www.youtube.com/
watch?v=N1Kf JHFWlhQ (last visited September 4, 2015).
She titled the video Lets Go Crazy #1. About four
seconds into the video, Lenz asks her thirteen month-old son
what do you think of the music? after which he bobs up and
down while holding a push toy.
At the time Lenz posted the video, Universal was Princes
publishing administrator responsible for enforcing his
copyrights. To accomplish this objective with respect to
YouTube, Robert Allen, Universals head of business affairs,
assigned Sean Johnson, an assistant in the legal department,
1
YouTube is a for-profit company that generates revenues by selling

advertising. If users choose to become content partners with YouTube,
they share in a portion of the advertising revenue generated. Lenz is not
a content partner and no advertisements appear next to the video.
to monitor YouTube on a daily basis. Johnson searched

YouTube for Princes songs and reviewed the video postings
returned by his online search query. When reviewing such
videos, he evaluated whether they embodied a Prince
composition by making significant use of . . . the
composition, specifically if the song was recognizable, was
in a significant portion of the video or was the focus of the
video. According to Allen, [t]he general guidelines are that
. . . we review the video to ensure that the composition was
the focus and if it was we then notify YouTube that the video
should be removed.
Johnson contrasted videos that met this criteria to those
that may have had a second or less of a Prince song, literally
a one line, half line of Prince song or were shot in
incredibly noisy environments, such as bars, where there
could be a Prince song playing deep in the background . . . to
the point where if there was any Prince composition
embodied . . . in those videos that it was distorted beyond
reasonable recognition. None of the video evaluation
guidelines explicitly include consideration of the fair use
doctrine.
When Johnson reviewed Lenzs video, he recognized
Lets Go Crazy immediately. He noted that it played loudly
in the background throughout the entire video. Based on
these details, the videos title, and Lenzs query during the
video asking if her son liked the song, he concluded that
Princes song was very much the focus of the video. As a
result, Johnson decided the video should be included in a
takedown notification sent to YouTube that listed more than
200 YouTube videos Universal believed to be making
unauthorized use of Princes songs.2 The notice included a

good faith belief statement as required by 17 U.S.C.
512(c)(3)(A)(v): We have a good faith belief that the
above-described activity is not authorized by the copyright
owner, its agent, or the law.
After receiving the takedown notification, YouTube
removed the video and sent Lenz an email on June 5, 2007,
notifying her of the removal. On June 7, 2007, Lenz
attempted to restore the video by sending a counternotification to YouTube pursuant to 512(g)(3). After
YouTube provided this counter-notification to Universal per
512(g)(2)(B), Universal protested the videos reinstatement
because Lenz failed to properly acknowledge that her
statement was made under penalty of perjury, as required by
512(g)(3)(C). Universals protest reiterated that the video
constituted infringement because there was no record that
either she or YouTube were ever granted licenses to
reproduce, distribute, publicly perform or otherwise exploit
the Composition. The protest made no mention of fair use.
After obtaining pro bono counsel, Lenz sent a second
counter-notification on June 27, 2007, which resulted in
YouTubes reinstatement of the video in mid-July.
II
Lenz filed the instant action on July 24, 2007, and her
Amended Complaint on August 15, 2007. After the district
court dismissed her tortious interference claim and request for
2
[T]he parties do not dispute that Lenz used copyrighted material in her
video or that Universal is the true owner of Princes copyrighted music.
Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 115354 (N.D. Cal.
2008).
declaratory relief, Lenz filed her Second Amended Complaint

on April 18, 2008, alleging only a claim for misrepresentation
under 512(f). The district court denied Universals motion
to dismiss the action.
On February 25, 2010, the district court granted Lenzs
partial motion for summary judgment on Universals six
affirmative defenses, including the third affirmative defense
that Lenz suffered no damages. Both parties subsequently
moved for summary judgment on Lenzs 512(f)
misrepresentation claim. On January 24, 2013, the district
court denied both motions in an order that is now before us.
The district court certified its summary judgment order
for interlocutory appeal under 28 U.S.C. 1292(b), and
stayed proceedings in district court pending resolution of the
appeal. We granted the parties permission to bring an
interlocutory appeal.
III
We review de novo the district courts denial of summary
judgment. When doing so, we must determine whether the
evidence, viewed in a light most favorable to the non-moving
party, presents any genuine issues of material fact and
whether the district court correctly applied the law. Warren
v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On
cross-motions for summary judgment, we evaluate each
motion independently, giving the nonmoving party in each
instance the benefit of all reasonable inferences. ACLU v.
City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
When evaluating an interlocutory appeal, we may
address any issue fairly included within the certified order
because it is the order that is appealable, and not the

controlling question identified by the district court. Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)
(emphasis in original) (quotation omitted). We may therefore
address those issues material to the order from which appeal
has been taken. In re Cinematronics, Inc., 916 F.2d 1444,
1449 (9th Cir. 1990) (emphasis in original) (permitting
appellate review of a ruling issued prior to the order certified
for interlocutory appeal).
IV
Effective on October 28, 1998, the DMCA added new
sections to existing copyright law by enacting five Titles,
only one of which is relevant here: Title IIOnline
Copyright Infringement Liability Limitation Actnow
codified in 17 U.S.C. 512. Sections 512(c), (f), and (g) are
at the heart of the parties dispute.
A
Section 512(c) permits service providers, e.g., YouTube
or Google, to avoid copyright infringement liability for
storing users content ifamong other requirementsthe
service provider expeditiously removes or disables access
to the content after receiving notification from a copyright
holder that the content is infringing. 17 U.S.C. 512(c).
Section 512(c)(3)(A) sets forth the elements that such a
takedown notification must contain. These elements
include identification of the copyrighted work, identification
of the allegedly infringing material, and, critically, a
statement that the copyright holder believes in good faith the
infringing material is not authorized by the copyright owner,
its agent, or the law. Id. 512(c)(3)(A). The procedures
10
outlined in 512(c) are referred to as the DMCAs

takedown procedures.
To avoid liability for disabling or removing content, the
service provider must notify the user of the takedown. Id.
512(g)(1)(2). The user then has the option of restoring the
content by sending a counter-notification, which must include
a statement of good faith belief that the material was
removed or disabled as a result of mistake or
misidentification . . . . Id. 512(g)(3)(C). Upon receipt of
a valid counter-notification, the service provider must inform
the copyright holder of the counter-notification and restore
the content within not less than 10, nor more than 14,
business days, unless the service provider receives notice
that the copyright holder has filed a lawsuit against the user
seeking to restrain the users infringing behavior. Id.
512(g)(2)(B)(C). The procedures outlined in 512(g) are
referred to as the DMCAs put-back procedures.
If an entity abuses the DMCA, it may be subject to
liability under 512(f). That section provides: Any person
who knowingly materially misrepresents under this
section(1) that material or activity is infringing, or (2) that
material or activity was removed or disabled by mistake or
misidentification, shall be liable for any damages . . . . Id.
512(f). Subsection (1) generally applies to copyright
holders and subsection (2) generally applies to users. Only
subsection (1) is at issue here.
B
We must first determine whether 17 U.S.C.
512(c)(3)(A)(v) requires copyright holders to consider
whether the potentially infringing material is a fair use of a
11
copyright under 17 U.S.C. 107 before issuing a takedown

notification. Section 512(c)(3)(A)(v) requires a takedown
notification to include a statement that the complaining party
has a good faith belief that the use of the material in the
manner complained of is not authorized by the copyright
owner, its agent, or the law. The parties dispute whether fair
use is an authorization under the law as contemplated by the
statutewhich is so far as we know an issue of first
impression in any circuit across the nation. Canons of
statutory construction dictate that if the language of a statute
is clear, we look no further than that language in determining
the statutes meaning. . . . A court looks to legislative history
only if the statute is unclear. United States v. Lewis, 67 F.3d
225, 22829 (9th Cir. 1995) (citations omitted). We agree
with the district court and hold that the statute unambiguously
contemplates fair use as a use authorized by the law.
Fair use is not just excused by the law, it is wholly
authorized by the law. In 1976, Congress codified the
application of a four-step test for determining the fair use of
copyrighted works:
Notwithstanding the provisions of sections
106 and 106A, the fair use of a copyrighted
work, . . . for purposes such as criticism,
comment, news reporting, teaching (including
multiple copies for classroom use),
scholarship, or research, is not an
infringement of copyright. In determining
whether the use made of a work in any
particular case is a fair use the factors to be
considered shall include
12

(1) the purpose and character of the use,
including whether such use is of a
commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the
portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential
market for or value of the copyrighted
work.
The fact that a work is unpublished shall not
itself bar a finding of fair use if such finding
is made upon consideration of all the above
factors.
17 U.S.C. 107 (emphasis added). The statute explains that

the fair use of a copyrighted work is permissible because it is
a non-infringing use.
While Title 17 of the United States Code (Copyrights)
does not define the term authorize or authorized, [w]hen
there is no indication that Congress intended a specific legal
meaning for the term, the court may look to sources such as
dictionaries for a definition. United States v. Mohrbacher,
182 F.3d 1041, 1048 (9th Cir. 1999). Blacks Law Dictionary
defines authorize as 1. To give legal authority; to
empower and 2. To formally approve; to sanction.
Authorize, Blacks Law Dictionary (10th ed. 2014). Because
17 U.S.C. 107 both empowers and formally approves
13
the use of copyrighted material if the use constitutes fair use,

fair use is authorized by the law within the meaning of
512(c). See also 17 U.S.C. 108(f)(4) (Nothing in this
section in any way affects the right of fair use as provided by
section 107 . . . . (emphasis added)).
Universals sole textual argument is that fair use is not
authorized by the law because it is an affirmative defense
that excuses otherwise infringing conduct. Universals
interpretation is incorrect as it conflates two different
concepts: an affirmative defense that is labeled as such due to
the procedural posture of the case, and an affirmative defense
that excuses impermissible conduct. Supreme Court
precedent squarely supports the conclusion that fair use does
not fall into the latter camp: [A]nyone who . . . makes a fair
use of the work is not an infringer of the copyright with
respect to such use. Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 433 (1984).
Given that 17 U.S.C. 107 expressly authorizes fair use,
labeling it as an affirmative defense that excuses conduct is
a misnomer:
Although the traditional approach is to view
fair use as an affirmative defense, . . . it is
better viewed as a right granted by the
Copyright Act of 1976. Originally, as a
judicial doctrine without any statutory basis,
fair use was an infringement that was
excusedthis is presumably why it was
treated as a defense. As a statutory doctrine,
however, fair use is not an infringement.
Thus, since the passage of the 1976 Act, fair
use should no longer be considered an
14

infringement to be excused; instead, it is
logical to view fair use as a right. Regardless
of how fair use is viewed, it is clear that the
burden of proving fair use is always on the
putative infringer.
Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th

Cir. 1996); cf. Lydia Pallas Loren, Fair Use: An Affirmative
Defense?, 90 Wash. L. Rev. 685, 688 (2015) (Congress did
not intend fair use to be an affirmative defensea defense,
yes, but not an affirmative defense.). Fair use is therefore
distinct from affirmative defenses where a use infringes a
copyright, but there is no liability due to a valid excuse, e.g.,
misuse of a copyright, Practice Management Information
Corp. v. American Medical Assn, 121 F.3d 516, 520 (9th Cir.
1997), and laches, Danjaq LLC v. Sony Corp., 263 F.3d 942,
95051 (9th Cir. 2001).
Universal concedes it must give due consideration to
other uses authorized by law such as compulsory licenses.
The introductory language in 17 U.S.C. 112 for compulsory
licenses closely mirrors that in the fair use statute. Compare
17 U.S.C. 112(a)(1) (Notwithstanding the provisions of
section 106, . . . it is not an infringement of copyright for a
transmitting organization entitled to transmit to the public a
performance or display of a work . . . to make no more than
one copy or phonorecord of a particular transmission program
embodying the performance or display . . . .), with id. 107
(Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work . . . is not an infringement
of copyright.). That fair use may be labeled as an affirmative
defense due to the procedural posture of the case is no
different than labeling a license an affirmative defense for the
same reason. Compare Campbell v. Acuff-Rose Music, Inc.,
15
510 U.S. 569, 573 & n.3, 590 (1994) (stating that fair use is
an affirmative defense where the district court converted a
motion to dismiss based on fair use into a motion for
summary judgment), with A&M Records, Inc. v. Napster,
Inc., 239 F.3d 1004, 102526 (9th Cir. 2001) (Napster
contends that . . . the district court improperly rejected valid
affirmative defenses of . . . implied license . . . .). Thus,
Universals argument that it need not consider fair use in
addition to compulsory licenses rings hollow.
Even if, as Universal urges, fair use is classified as an
affirmative defense, we holdfor the purposes of the
DMCAfair use is uniquely situated in copyright law so as
to be treated differently than traditional affirmative defenses.
We conclude that because 17 U.S.C. 107 created a type of
non-infringing use, fair use is authorized by the law and a
copyright holder must consider the existence of fair use
before sending a takedown notification under 512(c).
C
We must next determine if a genuine issue of material
fact exists as to whether Universal knowingly misrepresented
that it had formed a good faith belief the video did not
constitute fair use. This inquiry lies not in whether a court
would adjudge the video as a fair use, but whether Universal
formed a good faith belief that it was not. Contrary to the
district courts holding, Lenz may proceed under an actual
knowledge theory, but not under a willful blindness theory.
1
Though Lenz argues Universal should have known the
video qualifies for fair use as a matter of law, our court has
16
already decided a copyright holder need only form a

subjective good faith belief that a use is not authorized. Rossi
v. Motion Picture Assn of Am. Inc., 391 F.3d 1000 (9th Cir.
2004). In Rossi, we explicitly held that the good faith
belief requirement in 512(c)(3)(A)(v) encompasses a
subjective, rather than objective standard. Id. at 1004. We
further held:
In 512(f), Congress included an expressly
limited cause of action for improper
infringement notifications, imposing liability
only if the copyright owners notification is a
knowing misrepresentation. A copyright
owner cannot be liable simply because an
unknowing mistake is made, even if the
copyright owner acted unreasonably in
making the mistake. Rather, there must be a
demonstration of some actual knowledge of
misrepresentation on the part of the copyright
owner.
Id. at 100405 (citations omitted). Neither of these holdings
are dictum. See United States v. Johnson, 256 F.3d 895, 914
(9th Cir. 2001) (en banc) ([W]here a panel confronts an
issue germane to the eventual resolution of the case, and
resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit, regardless
of whether doing so is necessary in some strict logical
sense.).
As a result, Lenzs request to impose a subjective
standard only with respect to factual beliefs and an objective
standard with respect to legal determinations is untenable.
Such a request grafts an objective standard onto
17
512(c)(3)(A)(v) directly in contravention to Rossi. See

Rossi, 391 F.3d at 1004 (When enacting the DMCA,
Congress could have easily incorporated an objective
standard of reasonableness. The fact that it did not do so
indicates an intent to adhere to the subjective standard
traditionally associated with a good faith requirement.). We
therefore judge Universals actions by the subjective beliefs
it formed about the video.
2
Universal faces liability if it knowingly misrepresented in
the takedown notification that it had formed a good faith
belief the video was not authorized by the law, i.e., did not
constitute fair use. Here, Lenz presented evidence that
Universal did not form any subjective belief about the videos
fair useone way or another because it failed to consider
fair use at all, and knew that it failed to do so. Universal
nevertheless contends that its procedures, while not formally
labeled consideration of fair use, were tantamount to such
consideration. Because the DMCA requires consideration of
fair use prior to sending a takedown notification, a jury must
determine whether Universals actions were sufficient to form
a subjective good faith belief about the videos fair use or
lack thereof.
To be clear, if a copyright holder ignores or neglects our
unequivocal holding that it must consider fair use before
sending a takedown notification, it is liable for damages
under 512(f). If, however, a copyright holder forms a
subjective good faith belief the allegedly infringing material
does not constitute fair use, we are in no position to dispute
the copyright holders belief even if we would have reached
the opposite conclusion. A copyright holder who pays lip
18
service to the consideration of fair use by claiming it formed

a good faith belief when there is evidence to the contrary is
still subject to 512(f) liability. Cf. Disney Enters., Inc. v.
Hotfile Corp., No. 11-cv-20427, 2013 WL 6336286, at *48
(S.D. Fla. Sept. 20, 2013) (denying summary judgment of
512(f) counterclaim due to sufficient evidence in the
record to suggest that [Plaintiff] Warner intentionally targeted
files it knew it had no right to remove); Rosen v. Hosting
Servs., Inc., 771 F. Supp. 2d 1219, 1223 (C.D. Cal. 2010)
(denying summary judgment of 512(f) counterclaim where
the takedown notification listed four URL links that did not
contain content matching the description of the purportedly
infringed material); Online Policy Grp. v. Diebold, Inc.,
337 F. Supp. 2d 1195, 120405 (N.D. Cal. 2004) ([T]here is
no genuine issue of fact that Diebold knewand indeed that
it specifically intendedthat its letters to OPG and
Swarthmore would result in prevention of publication of that
content. . . . The fact that Diebold never actually brought suit
against any alleged infringer suggests strongly that Diebold
sought to use the DMCAs safe harbor provisionswhich
were designed to protect ISPs, not copyright holdersas a
sword to suppress publication of embarrassing content rather
than as a shield to protect its intellectual property.).
In order to comply with the strictures of
512(c)(3)(A)(v), a copyright holders consideration of fair
use need not be searching or intensive. We follow Rossis
guidance that formation of a subjective good faith belief does
not require investigation of the allegedly infringing content.
See 391 F.3d at 1003, 1005. We are mindful of the pressing
crush of voluminous infringing content that copyright holders
face in a digital age. But that does not excuse a failure to
comply with the procedures outlined by Congress. Cf. Lenz,
572 F. Supp. 2d at 1155 ([I]n the majority of cases, a
19
consideration of fair use prior to issuing a takedown notice

will not be so complicated as to jeopardize a copyright
owners ability to respond rapidly to potential infringements.
The DMCA already requires copyright owners to make an
initial review of the potentially infringing material prior to
sending a takedown notice; indeed, it would be impossible to
meet any of the requirements of Section 512(c) without doing
so. A consideration of the applicability of the fair use
doctrine simply is part of that initial review.).
We note, without passing judgment, that the
implementation of computer algorithms appears to be a valid
and good faith middle ground for processing a plethora of
content while still meeting the DMCAs requirements to
somehow consider fair use. Cf. Hotfile, 2013 WL 6336286,
at *47 (The Court . . . is unaware of any decision to date that
actually addressed the need for human review, and the statute
does not specify how belief of infringement may be formed
or what knowledge may be chargeable to the notifying
entity.). For example, consideration of fair use may be
sufficient if copyright holders utilize computer programs that
automatically identify for takedown notifications content
where: (1) the video track matches the video track of a
copyrighted work submitted by a content owner; (2) the audio
track matches the audio track of that same copyrighted work;
and (3) nearly the entirety . . . is comprised of a single
copyrighted work. Brief for The Org. for Transformative
Works, Public Knowledge & Intl Documentary Assn as
Amici Curiae Supporting Appellee at 2930 n.8 (citing the
Electronic Frontier Foundation website (link unavailable)).
Copyright holders could then employ individuals like
Johnson to review the minimal remaining content a computer
program does not cull. See Brief for The Recording Indus.
20
Assn of Am. as Amici Curiae Supporting Appellants at 15

([T]he RIAA has an entire department dedicated to
identifying infringement and issuing takedown requests.);
see also Hotfile, 2013 WL 6336286, at *14. During oral
argument Universal explained that service providers now use
screening algorithms. However, we need not definitively
decide the issue here because Universal did not proffer any
evidence thatat the time it sent the takedown notification to
Lenzit used a computer program to identify potentially
infringing content.
3
We hold the willful blindness doctrine may be used to
determine whether a copyright holder knowingly materially
misrepresent[ed] that it held a good faith belief the
offending activity was not a fair use. See 17 U.S.C.
512(c)(3)(A)(v), (f). [T]he willful blindness doctrine may
be applied, in appropriate circumstances, to demonstrate
knowledge or awareness of specific instances of infringement
under the DMCA. Viacom Intl, Inc. v. YouTube, Inc.,
676 F.3d 19, 35 (2d Cir. 2012) (interpreting how a party can
establish the actual knowledgea subjective belief
required by 512(c)(1)(A)(I)); see also UMG Recordings,
Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1023
(9th Cir. 2013) (Of course, a service provider cannot
willfully bury its head in the sand to avoid obtaining such
specific knowledge. (citing Viacom, 676 F.3d at 31)). But,
based on the specific facts presented during summary
judgment, we reject the district courts conclusion that Lenz
may proceed to trial under a willful blindness theory.
To demonstrate willful blindness a plaintiff must establish
two factors: (1) the defendant must subjectively believe that
21
there is a high probability that a fact exists and (2) the

defendant must take deliberate actions to avoid learning of
that fact. Global-Tech Appliances, Inc. v. SEB S.A., 131 S.
Ct. 2060, 2070 (2011). Under this formulation, a willfully
blind defendant is one who takes deliberate actions to avoid
confirming a high probability of wrongdoing and who can
almost be said to have actually known the critical facts. Id.
at 207071. To meet the Global-Tech test, Lenz must
demonstrate a genuine issue as to whetherbefore sending
the takedown notificationUniversal (1) subjectively
believed there was a high probability that the video
constituted fair use, and (2) took deliberate actions to avoid
learning of this fair use.
On summary judgment Lenz failed to meet a threshold
showing of the first factor. To make such a showing, Lenz
must provide evidence from which a juror could infer that
Universal was aware of a high probability the video
constituted fair use. See United States v. Yi, 704 F.3d 800,
805 (9th Cir. 2013). But she failed to provide any such
evidence. The district court therefore correctly found that
Lenz does not present evidence suggesting Universal
subjectively believed either that there was a high probability
any given video might make fair use of a Prince composition
or her video in particular made fair use of Princes song
Lets Go Crazy. Yet the district court improperly denied
Universals motion for summary judgment on the willful
blindness theory because Universal has not shown that it
lacked a subjective belief. By finding blame with
Universals inability to show that it lacked a subjective
belief, the district court improperly required Universal to
meet its burden of persuasion, even though Lenz had failed to
counter the initial burden of production that Universal
successfully carried. See Celotex Corp. v. Catrett, 477 U.S.
22
317, 322 (1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Lenz may not
therefore proceed to trial on a willful blindness theory.
V
Section 512(f) provides for the recovery of any damages,
including costs and attorneys[] fees, incurred by the alleged
infringer . . . who is injured by such misrepresentation, as the
result of the service provider relying upon such
misrepresentation in removing or disabling access to the
material or activity claimed to be infringing . . . . 17 U.S.C.
512(f). We hold a plaintiff may seek recovery of nominal
damages for an injury incurred as a result of a 512(f)
misrepresentation.
Universal incorrectly asserts that Lenz must demonstrate
she incurred actual monetary loss. Section 512(k) provides
a definition for monetary relief as damages, costs,
attorneys[] fees, and any other form of monetary payment.
The term monetary relief appears in 512(a), (b)(1), (c)(1),
and (d), but is notably absent from 512(f). As a result, the
damages an alleged infringer may recover under 512(f)
from any person are broader than monetary relief.3 Cf.
United States v. James, 478 U.S. 597, 605 (1986) (Congress
choice of the language any damage . . . undercuts a narrow
construction.), abrogated on other grounds by Cent. Green
Co. v. United States, 531 U.S. 425 (2001). Because Congress
specified the recovery of any damages, we reject
3
Title I of the DMCA specifies recovery for actual damages.

17 U.S.C. 1203(c)(1)(A). If Congress intended to similarly limit the
recovery of 512(f) damages to pecuniary losses, it could have chosen to
do so.
23
Universals contention that Congress did not indicate its

intent to depart from the common law presumption that a
misrepresentation plaintiff must have suffered a monetary
loss. See Keene Corp. v. United States, 508 U.S. 200, 208
(1993) (Where Congress includes particular language in one
section of a statute but omits it in another, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion. (quotation omitted)).
Lenz may seek recovery of nominal damages due to an
unquantifiable harm suffered as a result of Universals
actions.4 The DMCA is akin to a statutorily created
intentional tort whereby an individual may recover nominal
damages for a knowingly material misrepresent[ation] under
this section [512]. 17 U.S.C. 512(f); cf. Memphis Cmty.
Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986) (We have
repeatedly noted that 42 U.S.C. 1983 creates a species of
tort liability in favor of persons who are deprived of rights,
privileges, or immunities secured to them by the Constitution.
Accordingly, when 1983 plaintiffs seek damages for
violations of constitutional rights, the level of damages is
ordinarily determined according to principles derived from
the common law of torts. (quotation and citations omitted)).
In a number of common law actions associated with
intentional torts, the violation of the plaintiffs right has
generally been regarded as a kind of legal damage in itself.
The plaintiff who proves an intentional physical tort to the
person or to property can always recover nominal damages.
4
Lenz may not recover nominal damages for impairment of free speech
rights. No authority supports the recovery of nominal damages caused
by a private actors chilling of free speech rights. All of the cases Lenz
cites address challenges to governmental action.
24
3 Dan B. Dobbs et al., The Law of Torts 480 (2d ed. 2011).
The tort need not be physical in order to recover nominal
damages. Defamation, for example, permits the recovery of
nominal damages:
A nominal damage award can be justified in a
tort action only if there is some reason for
awarding a judgment in favor of a claimant
who has not proved or does not claim a
compensable loss with sufficient certainty to
justify a recovery of compensatory or actual
damages. There may be such a reason in an
action for defamation, since a nominal
damage award serves the purpose of
vindicating the plaintiffs character by a
verdict of the jury that establishes the falsity
of the defamatory matter.
W. Page Keeton et al., Prosser and Keeton on Torts 116A,
at 845 (5th ed. 1984). Also, individuals may recover nominal
damages for trespass to land, even though the trespassers
presence on the land causes no harm to the land [or] its
possessor . . . . Restatement (Second) of Torts 163 &
cmts. d, e (1965).
The district court therefore properly concluded in its 2010
order:
The use of any damages suggests strongly
Congressional intent that recovery be
available for damages even if they do not
amount to . . . substantial economic damages
. . . . Requiring a plaintiff who can [show
that the copyright holder knowingly
25
misrepresented its subjective good faith] to

demonstrate in addition not only that she
suffered damages but also that those damages
were economic and substantial would vitiate
the deterrent effect of the statute.
Lenz v. Universal Music Corp., No. C 07-3783 JF, 2010 WL
702466, at *10 (N.D. Cal. Feb. 25, 2010). Relying on this
opinion, the Southern District of Florida held the same.
Hotfile, 2013 WL 6336286, at *48 ([T]he Court observes
that the quantity of economic damages to Hotfiles system is
necessarily difficult to measure with precision and has led to
much disagreement between the parties and their experts.
Notwithstanding this difficulty, the fact of injury has been
shown, and Hotfiles expert can provide the jury with a
non-speculative basis to assess damages.).
We agree that Lenz may vindicate her statutorily created
rights by seeking nominal damages. Because a jury has not
yet determined whether Lenz will prevail at trial, we need not
decide the scope of recoverable damages, i.e., whether she
may recover expenses following the initiation of her 512(f)
suit or pro bono costs and attorneys fees, both of which arose
as a result of the injury incurred.
VI
Copyright holders cannot shirk their duty to considerin
good faith and prior to sending a takedown notification
whether allegedly infringing material constitutes fair use, a
use which the DMCA plainly contemplates as authorized by
the law. That this step imposes responsibility on copyright
holders is not a reason for us to reject it. Cf. Consumer Prod.
Safety Commn v. GTE Sylvania, Inc., 447 U.S. 102, 12324
26
(1980) ([A]ny increased burdens imposed on the

Commission as a result of its compliance with [the Consumer
Product Safety Act] were intended by Congress in striking an
appropriate balance between the interests of consumers and
the need for fairness and accuracy with respect to information
disclosed by the Commission. Thus, petitioners claim that
the Commissions compliance with the requirements of [the
Act] will impose undue burdens on the Commission is
properly addressed to Congress, not to this Court.). We
affirm the district courts order denying the parties crossmotions for summary judgment.
AFFIRMED. Each party shall bear its own costs.
M. SMITH, Circuit Judge, concurring in part, dissenting in

part, and concurring in the judgment:
I concur in all but Part IV.C of the majority opinion, and
concur in the judgment. Because I disagree with the
majoritys approach to three issues, I respectfully dissent
from Part IV.C.
First, I question whether 512(f) directly prohibits a party
from misrepresenting that it has formed a good faith belief
that a work is subject to the fair use doctrine. I construe the
plain text of the statute to prohibit misrepresentations that a
work is infringing, not misrepresentations about the partys
diligence in forming its belief that the work is infringing.
Second, I disagree that there is any material dispute about
whether Universal considered fair use. Because Universal
did not consider fair use, it may be held liable for
knowingly misrepresenting that the video was infringing,
27
if it should be determined that the video is a non-infringing

fair use. Universals misrepresentation, if any, was knowing
because Universal knew it had not considered fair use, and
therefore knew it lacked a basis to conclude that the video
was infringing. Third, I do not believe that the willful
blindness doctrine applies where, as here, a party has failed
to consider fair use and affirmatively misrepresents that a
work is infringing.
I fully agree with the majoritys conclusion that
512(c)(3)(A)(v) requires copyright holders to consider
whether potentially infringing material is a fair use before
issuing a takedown notice. As the majority opinion explains,
a takedown notice must contain [a] statement that the
complaining party has a good faith belief that use of the
material in the manner complained of is not authorized by the
copyright owner, its agent, or the law. 17 U.S.C.
512(c)(3)(A)(v). Because fair use of copyrighted material
is not an infringement of copyright, such use is authorized
by . . . the law. See id. 107. Therefore, in order to form a
good faith belief that use of the material in the manner
complained of is not authorized by . . . the law, id.
512(c)(3)(A)(v), a party must consider the doctrine of fair
use.
Where I part ways with the majority is in the proper
analysis of Universals misrepresentation. The majority
concludes that Universal faces liability if it knowingly
misrepresented in the takedown notification that it had
formed a good faith belief the video was not authorized by
the law, i.e., did not constitute fair use. An unstated premise
of this conclusion is that Universal impliedly represented that
it had considered fair use when it certified in its takedown
notification that it held a good faith belief that the video was
28
not authorized by the law. Under the majoritys approach,

Universals liability depends upon the truth or falsity of its
implied assertion that it held a good faith belief about
whether the video was a fair use.
However, I do not construe 512(f) to directly prohibit a
party from falsely implying that it has considered fair use.
Cf. Rossi v. Motion Picture Assn of Am., Inc., 391 F.3d 1000,
100405 (9th Cir. 2004) (noting that 512(f) is an expressly
limited cause of action). Section 512(f) provides that [a]ny
person who knowingly materially misrepresents under this
section . . . that material or activity is infringing . . . shall be
liable for any damages. (emphases added). The plain text of
the statute prohibits parties from misrepresenting that a work
is infringing, not from misrepresenting that they have
considered fair use.
In my view, the relevant representation in this case is
Universals assertion that the video is infringing. Universals
liability under 512(f) depends initially on the disputed issue
of whether the video is subject to the fair use doctrine. If the
video is a fair use, Universals representation that the video
is infringing was false.
This does not end the inquiry, of course, because 512(f)
only applies to knowing[] misrepresentations, not to
innocent or negligent misrepresentations. The majority
approach does not squarely address 512(f)s knowingly
requirement. In Rossi v. Motion Picture Association of
America Inc., we observed that [a] copyright owner cannot
be liable [under 512(f)] simply because an unknowing
mistake is made, even if the copyright owner acted
unreasonably in making the mistake. Rather, there must be
a demonstration of some actual knowledge of
29
misrepresentation on the part of the copyright owner.

391 F.3d at 1005 (citation omitted) (emphasis added).
Universal urges us to construe Rossi to mean that a party
must subjectively believe that the fact it asserts is false in
order to be liable under 512(f). If this is indeed the
meaning of Rossi, it is difficult to see how Lenz can possibly
prevail.1
Section 512(f)s knowingly requirement should not be
construed this restrictively. Universal may be held liable for
knowingly misrepresenting that the video was infringing if,
knowing it had not considered whether the video was a fair
use, it erroneously asserted that it was infringing. A party
cannot truthfully represent that a work subject to the fair use
doctrine is infringing if the party has knowingly failed to
consider whether the doctrine applies. Section 107 plainly
states that the fair use of a copyrighted work . . . is not an
infringement of copyright. The requirement that a party
hold a good faith belief that the infringing material is not
authorized by the law would be rendered meaningless if
parties could wholly omit to consider whether the material
was a fair use, and was therefore not an infringing material
at all.
This reading of 512(f) does not conflict with our
decision in Rossi. A party that knowingly fails to consider
1
The majority opinion implies that Universal would be liable if its

actions were not sufficient to form a good faith belief about fair use, and
that this is a disputed issue for the jury. But if Universals proposed
construction of Rossi is correct, Universal would not be liable merely
because its actions were not sufficient to form a good faith belief about
fair use. Instead, it would only be liable if it knew its actions were not
sufficient.
Otherwise, Universal would not have knowingly
misrepresented that it had formed a good faith belief about fair use.
30
fair use before erroneously asserting that a work is infringing

has some actual knowledge of misrepresentation, Rossi,
391 F.3d at 1005, because the party knows that, having failed
to consider fair use, it lacks a basis to assert that the work is
infringing.
This construction of knowingly is consistent with
common law principles of deceit and fraudulent
misrepresentation.
Under these principles, a
misrepresentation is knowing if the party knows it is ignorant
of the truth or falsity of its representation. For example, in
Cooper v. Schlesinger, 111 U.S. 148, 155 (1884), the
Supreme Court stated that a statement recklessly made,
without knowledge of its truth, [is] a false statement
knowingly made, within the settled rule. See also Sovereign
Pocahontas Co. v. Bond, 120 F.2d 39, 3940 (D.C. Cir.
1941); Knickerbocker Merch. Co. v. United States, 13 F.2d
544, 546 (2d Cir. 1926); L J Mueller Furnace Co. v. Cascade
Foundry Co., 145 F. 596, 600 (3d Cir. 1906); Hindman v.
First Natl Bank, 112 F. 931, 944 (6th Cir. 1902).
Construing knowingly to include assertions made in
conscious ignorance of their truth or falsity is also consistent
with the principles of the Second Restatement of Torts. The
Second Restatement provides that [a] misrepresentation is
fraudulent if the maker (a) knows or believes that the matter
is not as he represents it to be, (b) does not have the
confidence in the accuracy of his representation that he states
or implies, or (c) knows that he does not have the basis for his
representation that he states or implies. Restatement
31
(Second) of Torts 526 (emphasis added).2 Under these

principles, Universal faces liability if it misrepresented that
the video was infringing, knowing that it lacked a basis to
conclude that the video was not a fair use.
It is undisputed that Universal did not consider fair use
before sending the takedown notice. Its policy was to send
takedown notices if the composition was the focus of the
video, that is, where [t]he music [was] prominently featured
in the video. I disagree with the majoritys conclusion that
there is a factual dispute regarding whether applying this
policy in this case could have been sufficient to form a
subjective good faith belief about the videos fair use or lack
thereof. Section 107 explicitly enumerates the factors to be
considered in assessing whether a work is a fair use.
17 U.S.C. 107. Universals policy of determining whether
the composition was the focus of the video simply did not
permit it to form an opinion about how the fair use factors
applied to the video.3 Moreover, Universal knew it lacked a
2
The Second Restatement refers to fraudulent misrepresentation,

rather than knowing misrepresentation. See Restatement (Second) of
Torts 526. However, as the Restatement clarifies, the requirement that
a misrepresentation be fraudulent solely refers to the partys
knowledge of misrepresentation. Compare id. cmt. a. (The word
fraudulent is here used as referring solely to the makers knowledge of
the untrue character of his representation. This element of the defendants
conduct frequently is called scienter by the courts.), with Rossi,
391 F.3d at 1005 ([T]here must be a demonstration of some actual
knowledge of misrepresentation on the part of the copyright owner.). It
is therefore instructive to examine the Restatement definition of
fraudulent in construing the meaning of knowingly.
3
The majority opinion implies that a copyright holder could form a good
faith belief that a work was not a fair use by utilizing computer programs
that automatically identify possible infringing content. I agree that such
32
basis to conclude that the work was infringing, because it

knew that if this video was a fair use, it was not infringing.
Section 107 states as much explicitly. Id.
The sole disputed issue in this case was whether
Universals representation that the video was infringing was
falsethat is, whether the video was a fair use. Universal
knew that a fair use was not infringing, knew that it had not
considered fair use, and nonetheless asserted that the video
was infringing. Universal may be held to account if the video
was not infringing, because it knew it lacked a basis to assert
that it was.
I also have doubts about whether the willful blindness
doctrine is relevant to analyzing whether a misrepresentation
is knowing[] under 512(f). The doctrine was originally
applied to criminal statutes requir[ing] proof that a
defendant acted knowingly or willfully. See Global-Tech
Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2068 (2011).
Courts reasoned that defendants could not avoid criminal
liability under such statutes by deliberately shielding
themselves from clear evidence of critical facts that are
programs may be useful in identifying infringing content. However, the

record does not disclose whether these programs are currently capable of
analyzing fair use. Section 107 specifically enumerates the factors to be
considered in analyzing fair use. These include: the purpose and
character of the use, including whether such use is of a commercial nature
or is for nonprofit educational purposes; the nature of the copyrighted
work; the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and the effect of the use upon the
potential market for or value of the copyrighted work. 17 U.S.C. 107.
For a copyright holder to rely solely on a computer algorithm to form a
good faith belief that a work is infringing, that algorithm must be capable
of applying the factors enumerated in 107.
33
strongly suggested by the circumstances. Id. at 206869.

Federal courts have applied the doctrine to non-criminal
statutes that include a requirement that a party have acted
knowingly or willfully, including intellectual property
statutes. See id. at 206871 (active inducement of patent
infringement under 35 U.S.C. 271(b)); Viacom Intl, Inc. v.
YouTube, Inc., 676 F.3d 19, 3435 (2d Cir. 2012) (actual
knowledge under 17 U.S.C. 512(c)s safe harbor
provision); In re Aimster Copyright Litig., 334 F.3d 643,
65051 (7th Cir. 2003) (contributory infringement of
copyright); Dolman v. Agee, 157 F.3d 708, 71415 (9th Cir.
1998) (willful copyright infringement under 17 U.S.C.
504(c)(2)). It does not necessarily follow, however, that we
should apply the doctrine to construe 512(f). Section 512(f)
creates a statutory misrepresentation action, and it is likely
Congress intended the action to mirror analogous common
law torts like fraud, deceit, and misrepresentation. Therefore,
we should examine common law tort principles to construe
knowingly, rather than import a doctrine that developed
from the criminal law. As I explain above, common law
principles of misrepresentation establish that a
misrepresentation is knowing if the party knows it is ignorant
of the truth or falsity of its representation.
Because the common law of torts already provides ample
insight into what Congress meant by knowingly, there is no
need to also apply the more stringent, and confusing, willful
blindness test. To demonstrate willful blindness a plaintiff
must establish two factors: (1) the defendant must
subjectively believe that there is a high probability that a fact
exists and (2) the defendant must take deliberate actions to
avoid learning of that fact. Global-Tech, 131 S. Ct. at 2070.
It makes little sense in this case to ask whether Universal
subjectively believed that there was a high probability the
34
video was a fair use. The evidence was that Universal

knowingly failed to form any belief about whether the video
was fair use. This suffices to satisfy 512(f)s requirement
that the misrepresentation be knowing[].
In sum, I would hold that parties must individually
consider whether a work is a fair use before representing that
the work is infringing in a takedown notice. If they do not,
and the work is a non-infringing fair use, they are subject to
liability for knowingly misrepresenting that the work is
infringing.
For the foregoing reasons, I respectfully dissent in part.

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Case: 13-16106, 09/14/2015, ID: 9680698, DktEntry: 84-1, Page 1 of 34

UNITED STATES COURT OF APPEALS

UNIVERSAL MUSIC CORP.;

Appeal from the United States District Court

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LENZ V. UNIVERSAL MUSIC

The panel affirmed the district courts denial of the

This summary constitutes no part of the opinion of the court. It has

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LENZ V. UNIVERSAL MUSIC

Judge M. Smith concurred in part, dissented in part, and

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LENZ V. UNIVERSAL MUSIC

Jennifer Pariser, Of Counsel, Recording Industry Association

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LENZ V. UNIVERSAL MUSIC

qualifies as fair use. We hold that the statute requires

YouTube is a for-profit company that generates revenues by selling

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LENZ V. UNIVERSAL MUSIC

to monitor YouTube on a daily basis. Johnson searched

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LENZ V. UNIVERSAL MUSIC

unauthorized use of Princes songs.2 The notice included a

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LENZ V. UNIVERSAL MUSIC

declaratory relief, Lenz filed her Second Amended Complaint

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LENZ V. UNIVERSAL MUSIC

because it is the order that is appealable, and not the

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LENZ V. UNIVERSAL MUSIC

outlined in 512(c) are referred to as the DMCAs

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LENZ V. UNIVERSAL MUSIC

copyright under 17 U.S.C. 107 before issuing a takedown

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LENZ V. UNIVERSAL MUSIC

17 U.S.C. 107 (emphasis added). The statute explains that

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LENZ V. UNIVERSAL MUSIC

the use of copyrighted material if the use constitutes fair use,

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LENZ V. UNIVERSAL MUSIC

Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th

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LENZ V. UNIVERSAL MUSIC

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LENZ V. UNIVERSAL MUSIC

already decided a copyright holder need only form a

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LENZ V. UNIVERSAL MUSIC

512(c)(3)(A)(v) directly in contravention to Rossi. See

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LENZ V. UNIVERSAL MUSIC

service to the consideration of fair use by claiming it formed

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LENZ V. UNIVERSAL MUSIC

consideration of fair use prior to issuing a takedown notice