Publication - 2/6/2009

User-Generated Content, Online Fair Use and the DMCA's Good Faith Requirement

BNA's Patent, Trademark & Copyright Journal

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Washington, D.C., partner Mike Remington and associate Phil Cardinale authored this article, published in BNA's Patent, Trademark & Copyright Journal.  The past few years have seen explosive growth of “user-generated content” (or participatory content) that consists of audio and video materials, quite often with music, created by individuals and uploaded to Internet sites, where they are made available to users for streaming and/or downloading.  Currently, a great deal of confusion exists about copyright, including fair use and the ramifications of user-generated content.  According to some, infringement of intellectual property can occur so rapidly and repeatedly on websites that host user-generated content – such as YouTube and MySpace – that one of the best methods for combating infringement on these sites is to make broad requests for take-downs under the Digital Millennium Copyright Act (DMCA), as fast as possible.  According to others, user-generated content is a vital new exercise of free speech that should be nurtured and facilitated.  These contesting views emerged recently in the case of the Artist Formerly Known as Prince, against the creator of a video starring dancing infants.  In Lenz v. Universal Music Corp., 572 F.Supp. 2d 1150 (N.D. Calif. 2008), a federal district court held that a copyright owner who seeks to enforce a DMCA take-down request must “consider the fair use doctrine in formulating 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.’”  Under Lenz, the “good faith” requirement is judged from the copyright holder’s perspective, which generally makes this test easy to pass if the copyright holder can demonstrate an effort to evaluate fair use.  Nevertheless, the court imposed a significant new DMCA duty on the copyright holder, which must now expressly preempt fair use arguments before rebutting fair use defenses.