If Lenz is the high-water mark for takedown perjury, we’re not in a great place. I mean, a District Court’s order in response to a 12(b)(6) motion for dismissal? That’s basically a finding that the suit has some possible cause of action and isn’t totally spurious, and being from a District Court its reasoning is binding on no one. And the big problem addressed by the order itself is that it’s not exactly clear what the remedy would be.
It’s also unclear what level of review would be necessary to meet the proposed good-faith evaluation of fair use. I honestly can’t imagine the bar being very high, or higher courts even accepting this standard at the takedown-notice stage, given the costs it would impose on copyright holders and the fact that fair use is an affirmative defense.
