Before sending a DMCA takedown notice, one must consider whether the objectionable material constitutes fair use

I wrote recently that Universal was resting its case on a "weak reed" in arguing that it need not consider whether the use of its copyrighted materials is fair use before sending a DMCA takedown notice. The case, of course, involves the YouTube video of a baby dancing for 29 seconds to Prince's "Let's Go Crazy." US Judge Jeremy Fogel agrees: he ruled 2 days ago that content holders must consider the fair use premise before sending takedown notices to video sites. In his decision (pdf), Judge Fogel writes:

[I]n order for a copyright owner to proceed under the DMCA with “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 owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an
interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.” Sen. Rep. No. 105-190 at 21 (1998).