Now, after eight years of grinding litigation, a federal appeals court has sided with Lenz. When a company like Universal wants to send a takedown notice under the Digital Millennium Copyright Act (DMCA), it must first consider whether the case in question could be construed as a legitimate "fair use" of the copyrighted material, the Ninth Circuit Court of Appeals ruled Monday.
In other words, regular people should be given more benefit of the doubt. Copyright holders should bear the initial burden for demonstrating that the clip or video they they're targeting actually constitutes fair use — a part of federal copyright law that allows for some limited use of copyrighted works even if the user hasn't secured the copyright holder's permission.
The onus, the court ruled, is on the party alleging infringement to "consider fair use before sending a takedown notification, and that failure to do so raises a triable issue."
What the court is saying is that Universal needs to take the fair use defense into account before sending a takedown notice in the first place. But there are a couple of things that soften the impact of this ruling. First, it's unclear whether considering fair use earlier would actually deter copyright holders from alleging infringement.
Second, many takedown notices are now sent and acted upon using computers and algorithms, rather than by hand. Because the test for fair use can be subjective — calling into question things like how much of the work was reproduced and whether it stands to harm future sales of said work — it may be trickier than we think to put this ruling, which is responsive to 2007-era conditions, into practice in 2015.