Fair Use and DMCA Take-Downs

Lenz v. Universal Music Publishing, Inc., No. 07-CV-03783, 2008 BL 247967 (N.D. Cal. Oct. 28, 2008), denying defendants Universal Music Publishing, Inc. and Universal Music Publishing Group’s (collectively, “Universal”) request for certification for interlocutory appeal in a case involving an allegedly infringing YouTube video.

Although Universal sought certification of a controlling question of first impression on the issue of fair use and a copyright owner’s obligations with regard to the Digital Millennium Copyright
Act (DMCA) takedown notice procedures, the court found the question did not provide substantial grounds for difference of opinion, nor that a resolution of the question would materially advance the litigation at this stage.

[More from Bloomberg.]

The court, in an earlier decision held that the DMCA requires consideration of fair use prior to sending a takedown notice. Universal then filed the instant motion, seeking certification for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) of the issue of “whether 17 U.S.C. § 512(c)(3)(v) requires a copyright owner to 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.’” The court denied Universal’s motion for interlocutory appeal.