{"id":2190,"date":"2015-09-16T07:08:52","date_gmt":"2015-09-16T11:08:52","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=2190"},"modified":"2026-04-09T19:08:04","modified_gmt":"2026-04-09T19:08:04","slug":"ninth-circuit-gets-fair-use-wrong-to-the-detriment-of-creators","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2015\/09\/16\/ninth-circuit-gets-fair-use-wrong-to-the-detriment-of-creators\/","title":{"rendered":"[Archived Post] Ninth Circuit Gets Fair Use Wrong to the Detriment of Creators"},"content":{"rendered":"

By Devlin Hartline<\/em><\/p>\n

The Ninth Circuit\u2019s opinion<\/a> in Lenz v. Universal<\/em> is out, and it\u2019s a doozy. The main issue in the case is whether a rightholder has to consider fair use before sending a DMCA takedown notice. Section 512<\/a> requires the sender to state that she \u201chas 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.\u201d Section 107<\/a> says that \u201cthe fair use of a copyrighted work . . . is not an infringement of copyright.\u201d The question is whether fair use, which \u201cis not an infringement\u201d under Section 107, is therefore \u201cauthorized by . . . the law\u201d under Section 512.<\/p>\n

The court concludes that Section 512 \u201cunambiguously contemplates fair use as a use authorized by the law.\u201d This means that rightholders in the Ninth Circuit are now obligated to consider and reject fair use before sending a takedown notice. The court\u2019s new spin on the DMCA places additional obstacles in the way of rightholders\u2014particularly individual creators. The system is already confusing and onerous, and now it burdens people who are not lawyers with the duty to reach legal conclusions. The DMCA notice and takedown regime is a joke<\/a>, often providing creators\u00a0and rightholders less than a few minutes of relief before infringing works are reposted, and this opinion only makes the problem worse. But rather than rehash commentary you can read elsewhere, I want to highlight one startling error in the court\u2019s reasoning.<\/p>\n

In a bizarre section of the opinion, the Ninth Circuit declares that fair use is not an affirmative defense that excuses infringement: \u201cGiven that 17 U.S.C. \u00a7 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer[.]\u201d In support, the court purports to quote a footnote from the Eleventh Circuit\u2019s opinion<\/a> in Bateman<\/em> for the proposition that fair use is a right:<\/p>\n

Although the traditional approach is to view \u201cfair use\u201d as an affirmative defense, . . . it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused\u2014this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.<\/p><\/blockquote>\n

This is extremely misleading. The Ninth Circuit makes it sound like the Eleventh Circuit rejects the notion that fair use is an affirmative defense that excuses otherwise infringing conduct. The reality is that the Eleventh Circuit does no such thing. Here\u2019s the full footnote from Bateman<\/em>, with a paragraph break added:<\/p>\n

Fair use traditionally has been treated as an affirmative defense to a charge of copyright infringement See Campbell v. Acuff\u2013Rose Music, Inc.<\/em>, 510 U.S. 569, \u2013\u2013\u2013\u2013, 114 S.Ct. 1164, 1177, 127 L.Ed.2d 500 (1994) (stating that \u201cfair use is an affirmative defense\u201d). In viewing fair use as an excused infringement, the court must, in addressing this mixed question of law and fact, determine whether the use made of the original components of a copyrighted work is \u201cfair\u201d under 17 U.S.C. \u00a7 107. See Harper & Row, Publishers, Inc. v. Nation Enters.<\/em>, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985) (citing Pacific & Southern Co. v. Duncan<\/em>, 744 F.2d 1490, 1495 n. 8 (11th Cir.1984), cert. denied<\/em>, 471 U.S. 1004, 105 S.Ct. 1867, 85 L.Ed.2d 161 (1985)).<\/p>\n

Although the traditional approach is to view \u201cfair use\u201d as an affirmative defense, this writer, speaking only for himself, is of the opinion that it is better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused\u2014this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.<\/p><\/blockquote>\n

The Ninth Circuit here cut out the first half of the footnote, where the Eleventh Circuit quotes binding Supreme Court precedent explicitly saying that \u201cfair use is an affirmative defense\u201d and then explains what must be done when analyzing such an \u201cexcused infringement.\u201d Even worse, the Ninth Circuit uses an ellipsis to cut out the part in the second half of the footnote where Judge Birch, who authored Bateman<\/em>, makes clear that he\u2019s \u201cspeaking only for himself\u201d when he says that fair use is not an \u201cinfringement to be excused.\u201d The Ninth Circuit pretends to be adopting the Eleventh Circuit\u2019s reasoning, when in fact it\u2019s rejecting it.<\/p>\n

Judge Birch himself even reiterates the point five years later in his opinion<\/a> for the Eleventh Circuit in the Suntrust<\/em> case. In discussing the opinion of the court, he refers to the defendant\u2019s \u201caffirmative defense of fair use.\u201d But then in the accompanying footnote, he likewise says that it\u2019s only his personal opinion that fair use is a right. Here\u2019s what he writes:<\/p>\n

I believe that fair use should be considered an affirmative right<\/em> under the 1976 Act, rather than merely an affirmative defense, as it is defined in the Act as a use that is not a violation of copyright. See<\/em> Bateman v. Mnemonics, Inc.<\/em>, 79 F.3d 1532, 1542 n. 22 (11th Cir.1996). However, fair use is commonly referred to as an affirmative defense, see<\/em> Campbell v. Acuff\u2013Rose Music, Inc.<\/em>, 510 U.S. 569, 590, 114 S.Ct. 1164, 1177, 127 L.Ed.2d 500 (1994), and, as we are bound by Supreme Court precedent, we will apply it as such.<\/p><\/blockquote>\n

Judge Birch fully understands that fair use is an affirmative defense and that binding Supreme Court precedent compels him to \u201capply it as such.\u201d And twice he has followed that precedent when writing for the Eleventh Circuit. Yet, the Ninth Circuit here makes it sound like it\u2019s agreeing with the Eleventh Circuit in holding that fair use is a right and not an affirmative defense.<\/p>\n

The Eleventh Circuit has even explicitly said that Judge Birch\u2019s view is not the law in that circuit. In an opinion<\/a> from 2010, the Eleventh Circuit rejects an argument made by the defendant that \u201cfair use is merely a denial of copyright infringement rather than an affirmative defense[.]\u201d The defendant had cited Judge Birch for the proposition, but the Eleventh Circuit notes that \u201ca close reading of Judge Birch\u2019s comments reveal that he was expressing his personal views, not the views of this Court,\u201d and it again holds that \u201cthe fair use of copyrighted work is an affirmative defense and should be pleaded as such.\u201d<\/p>\n

It\u2019s simply disingenuous for the Ninth Circuit to claim that fair use is not an affirmative defense in the Eleventh Circuit. It is an affirmative defense there and in every other circuit because the Supreme Court has said it\u2019s so. Judge Birch doesn\u2019t get to overrule the Supreme Court, and neither does the Ninth Circuit. Yet, that\u2019s what it purports to do here in Lenz v. Universal<\/em>.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Devlin Hartline The Ninth Circuit\u2019s opinion in Lenz v. Universal is out, and it\u2019s a doozy. The main issue in the case is whether a rightholder has to consider fair use before sending a DMCA takedown notice. Section 512 requires the sender to state that she \u201chas a good faith belief that use of […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,12,29,1],"tags":[189,447,492,543,794,878,1018,1307,1330,1415],"class_list":["post-2190","post","type-post","status-publish","format-standard","hentry","category-copyright","category-copyright-theory","category-internet","category-uncategorized","tag-bateman","tag-dmca","tag-eleventh-circuit","tag-fair-use","tag-judge-birch","tag-lenz-v-universal","tag-ninth-circuit","tag-section-107","tag-section-512","tag-suntrust"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2190","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=2190"}],"version-history":[{"count":2,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2190\/revisions"}],"predecessor-version":[{"id":16924,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2190\/revisions\/16924"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=2190"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=2190"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=2190"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}