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zocalo writes:

In what could be an upset to the media companies use of automated DMCA takedowns the Ninth Circuit Court of Appeals ruled on Monday that copyright holders must consider fair use before demanding companies such as YouTube remove potentially infringing content and can be liable for damages if they do not.

The three-judge panel on the court determined Stephanie Lenz, who posted a YouTube video of her child dancing to a Prince song in 2007, could proceed with her lawsuit seeking damages from Universal Music Corp., which pressed YouTube to remove the video under the Digital Millennium Copyright Act (DMCA). "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," according to the majority opinion.

It's not completely clear cut and dried however, as the court found 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 DMCA's requirements to somehow consider fair use." It speculated about a model in which a company sets up a computer program to send automatic takedown notices for content it identifies as nearly identical to copyrighted work, while a backup process uses humans to manually review other content that the computer program identified with less certainty.

While an appeal is probably inevitable, could this possibly be some light at the end of the tunnel for some of the overreaching and abusive use of the DMCA to take down non-infringing and fair use content?

Original Submission