The US 9^th 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.