A DMCA 512 takedown notice requires the noticer to aver “under penalty of perjury” that she has a “good faith belief” that the material in question infringes a copyright. 17 USC §§ 512(c)(3)(A)(v) and (vi). In Lenz v. Universal Music, the district court found that in order to have a 512(c) good faith belief of infringement, the noticer must take into account whether the material is a fair use.
[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." Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 - Dist. Court, ND California 2008 at 1155-56.)
Furthermore, ignoring or misrepresenting a fair use analysis is sufficient to state a claim under the misrepresentation clause, 512(f). Id. at 1156; see also 17 USC § 512(f).
I think what’s missing (or at least, I cannot find it) is a good case where a noticer was sued under 512(f) for misrepresenting a copyright claim (particularly because the use was a fair use because it was criticism or parody), see 17 USC § 107.
