On September 14, 2015, the Ninth Circuit Court of Appeals, ruling in Lenz v. Universal Music Group, 2015 U.S. App. LEXIS 16308 (“Lenz 2015”), affirmed the denial of the respective parties’ motions for summary judgment... In doing so, the court made a ruling regarding copyright fair use which should not have been surprising to those following the seven-year old case but based it on a reading of the Digital Millennium Copyright Act (the “DMCA”) which has the potential for profoundly influencing the way courts decide fair use cases.

Heretofore plaintiffs, defendants, their attorneys and courts have customarily maintained that fair use is an affirmative defense against a claim of infringement. In other words, before there could be a fair use, there had to be an alleged infringement, which fair use might excuse. Not so, says the Ninth Circuit: fair use is a use authorized by law.