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Copyright Owners Now Have Duty to Consider “Fair Use” Before Issuing Takedown Notice

The US 9th Circuit Court of Appeals opinion has ruled that copyright owners—before issuing takedown notices under the Digital Millennium Copyright Act—have a duty to consider whether subject video postings constitute fair use.

While “fair use” has traditionally been viewed as a defense for defendants to raise, this ruling effectively changes fair use to an element of whether a user is infringing in the first place.  A copyright owner’s failure to consider fair use before sending a takedown notice can now create liability for the copyright owner.