Shapiro Arato Files Amicus Brief Addressing Novel Issue Under The Digital Millennium Copyright Act

On October 17, 2013, Shapiro, Arato & Isserles LLP filed an amicus brief on behalf of the Recording Industry Association of America in the United States Court of Appeals for the Ninth Circuit in the so-called “dancing baby” case. The amicus brief addressed a novel issue under the Digital Millennium Copyright Act (“DMCA”): whether a copyright owner who sends a takedown notice under the DMCA must consider, prior to sending the notice, whether the content that the owner seeks to have removed constitutes a fair use.

The DMCA permits copyright owners to send takedown notices to internet service providers that require them to remove infringing material from their sites. We argued in the amicus brief that any requirement to consider the fair use defense prior to sending a takedown notice would place a harmful and unnecessary burden on copyright owners. Copyright owners are inundated with online infringement that deprives them of important sources of revenue and destroys the value of their intellectual property. The RIAA must send millions of takedown notices each month to combat this infringement in a never ending “whack-a-mole” fashion. As we demonstrated in the brief, the takedown procedure is the only meaningful remedy copyright owners have to address online infringement. A rule requiring consideration of fair use – a necessarily cumbersome and time-consuming inquiry – prior to sending a takedown notice would undermine, if not render useless, this important tool. In addition, the brief also shows that a requirement to consider fair use is not necessary to protect persons who make fair uses of copyrighted material. There is no evidence that the takedown procedure is abused at the expense of fair use, and users whose content is removed can easily trigger its reposting by sending a notice to their service provider claiming that the removal was in error.

Cynthia S. Arato, Marc E. Isserles, and Jeremy Licht of Shapiro, Arato & Isserles LLP co-authored the brief, along with Jennifer L. Pariser of the Recording Industry Association of America. The case is Lenz v. Universal Music Corp., et al., Nos. 13-16106, 13-13107. A copy of the brief is available here.