                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

STEPHANIE LENZ,                          Nos. 13-16106
                   Plaintiff-Appellee/        13-16107
                    Cross-Appellant,
                                            D.C. No.
                  v.                     5:07-cv-03783-
                                               JF
UNIVERSAL MUSIC CORP.;
UNIVERSAL MUSIC PUBLISHING INC.;
UNIVERSAL MUSIC PUBLISHING                ORDER AND
GROUP INC.,                                AMENDED
            Defendants-Appellants/          OPINION
                  Cross-Appellees.

      Appeal from the United States District Court
         for the Northern District of California
       Jeremy D. Fogel, District Judge, Presiding

                 Argued and Submitted
        July 7, 2015—San Francisco, California

               Filed September 14, 2015
               Amended March 17, 2016

    Before: Richard C. Tallman, Milan D. Smith, Jr.,
         and Mary H. Murguia, Circuit Judges.

                         Order;
               Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Milan D.
                       Smith, Jr.
2                  LENZ V. UNIVERSAL MUSIC

                           SUMMARY*


              Digital Millennium Copyright Act

    The panel filed (1) an order amending its prior opinion
and dissent and denying appellants’ petition for panel
rehearing and cross-appellant’s petitions for panel rehearing
and rehearing en banc; and (2) an amended opinion and
dissent in an action under the Digital Millennium Copyright
Act.

    The panel affirmed the district court’s denial of the
parties’ cross-motions for summary judgment on a claim that
the defendants violated 17 U.S.C. § 512(f) by misrepresenting
in a takedown notification that the plaintiff’s home video
constituted an infringing use of a portion of a Prince
composition.

     The panel held that the DCMA requires copyright holders
to consider fair use before sending a takedown notification,
and that there was a triable issue as to whether the defendant
copyright holders formed a subjective good faith belief that
plaintiff’s use was not authorized by law. Regarding good
faith belief, the panel held that the plaintiff could proceed
under an actual knowledge theory. The panel held that the
willful blindness doctrine may be used to determine whether
a copyright holder knowingly materially misrepresented that
it held a good faith belief that the offending activity was not
a fair use. The plaintiff here, however, could not proceed to
trial under a willful blindness theory because she did not

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 LENZ V. UNIVERSAL MUSIC                       3

show that the defendants subjectively believed there was a
high probability that the video constituted fair use. The panel
also held that a plaintiff may seek recovery of nominal
damages for an injury incurred as a result of a § 512(f)
misrepresentation.

    Judge M. Smith concurred in part and dissented in part.
Dissenting from Part IV.C of the majority opinion, addressing
good faith belief, he wrote that there was not a triable issue
and that the plaintiff was entitled to summary judgment. He
wrote that he agreed with the majority’s conclusion that the
DCMA requires copyright holders to consider whether
potentially infringing material is a fair use before issuing a
takedown notice, but he would clarify that § 512(f)’s
requirement that a misrepresentation be knowing is satisfied
when a party knows that it is ignorant of the truth or falsity of
the misrepresentation. He also would hold that defendants’
actions were insufficient as a matter of law to form a
subjective good-faith belief that plaintiff’s video was not a
fair use.


                         COUNSEL

Kelly M. Klaus (argued) and Melinda LeMoine, Munger,
Tolles & Olson LLP, Los Angeles, California, for
Defendants-Appellants/Cross-Appellees.

Corynne McSherry (argued), Cindy Cohn, Kurt Opsahl,
Daniel K. Nazer, and Julie Samuels, Electronic Frontier
Foundation, San Francisco, California; Ashok Ramani,
Michael S. Kwun, and Theresa H. Nguyen, Keker & Van
Nest LLP, San Francisco, California, for Plaintiff-
Appellee/Cross-Appellant.
4               LENZ V. UNIVERSAL MUSIC

Steven Fabrizio and Scott Wilkens, Jenner & Block LLP,
Washington, D.C., for Amicus Curiae Motion Picture
Association of America, Inc.

Jennifer Pariser, Of Counsel, Recording Industry Association
of America, Washington, D.C.; Cynthia Arato, Marc Isserles,
and Jeremy Licht, Shapiro, Arato & Isserles LLP, New York,
New York, for Amicus Curiae Recording Industry
Association of America.

Joseph Gratz, Durie Tangri LLP, San Francisco, California,
for Amici Curiae Google Inc., Twitter Inc., and Tumblr, Inc.

Marvin Ammori and Lavon Ammori, Ammori Group,
Washington, D.C., for Amicus Curiae Automatic, Inc.

Julie Ahrens and Timothy Greene, Stanford Law School
Center for Internet and Society, Stanford, California, for
Amici Curiae Organization for Transformative Works, Public
Knowledge, and International Documentary Association.

Catherine R. Gellis, Sausalito, California, for Amicus Curiae
Organization for Transformative Works.


                         ORDER

   The opinion and dissent filed on September 14, 2015 and
published at 801 F.3d 1126 are hereby amended. The
amended opinion and dissent are filed concurrently with this
order.

   With these amendments, the panel has voted to deny
Universal’s petition for panel rehearing and Lenz’s petition
                LENZ V. UNIVERSAL MUSIC                   5

for panel rehearing. Judge Tallman and Judge Murguia have
voted to deny Lenz’s petition for rehearing en banc, and
Judge M. Smith has voted to grant Lenz’s petition for
rehearing en banc.

    The full court has been advised of the petition for
rehearing en banc. No judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35(b).

    Universal’s petition for panel rehearing is DENIED.
Lenz’s petition for panel rehearing or rehearing en banc is
DENIED. No future petitions for panel rehearing or petitions
for rehearing en banc will be entertained.



                        OPINION

TALLMAN, Circuit Judge:

    Stephanie Lenz filed suit under 17 U.S.C. § 512(f)—part
of the Digital Millennium Copyright Act (“DMCA”)—
against Universal Music Corp., Universal Music Publishing,
Inc., and Universal Music Publishing Group (collectively
“Universal”). She alleges Universal misrepresented in a
takedown notification that her 29-second home video (the
“video”) constituted an infringing use of a portion of a
composition by the Artist known as Prince, which Universal
insists was unauthorized by the law. Her claim boils down to
a question of whether copyright holders have been abusing
the extrajudicial takedown procedures provided for in the
DMCA by declining to first evaluate whether the content
qualifies as fair use. We hold that the statute requires
copyright holders to consider fair use before sending a
6                  LENZ V. UNIVERSAL MUSIC

takedown notification, and that in this case, there is a triable
issue as to whether the copyright holder formed a subjective
good faith belief that the use was not authorized by law. We
affirm the denial of the parties’ cross-motions for summary
judgment.

                                   I

    Founded in May 2005, YouTube (now owned by Google)
operates a website that hosts user-generated content. About
YouTube, YouTube.com, https://www. youtube.com/yt/about/
(last visited September 4, 2015). Users upload videos
directly to the website. Id. On February 7, 2007, Lenz
uploaded to YouTube a 29-second home video of her two
young children in the family kitchen dancing to the song Let’s
Go Crazy by Prince.1 Available at https://www.youtube.com/
watch?v=N1Kf JHFWlhQ (last visited September 4, 2015).
She titled the video “‘Let’s Go Crazy’ #1.” About four
seconds into the video, Lenz asks her thirteen month-old son
“what do you think of the music?” after which he bobs up and
down while holding a push toy.

    At the time Lenz posted the video, Universal was Prince’s
publishing administrator responsible for enforcing his
copyrights. To accomplish this objective with respect to
YouTube, Robert Allen, Universal’s head of business affairs,
assigned Sean Johnson, an assistant in the legal department,
to monitor YouTube on a daily basis. Johnson searched
YouTube for Prince’s songs and reviewed the video postings


    1
    YouTube is a for-profit company that generates revenues by selling
advertising. If users choose to become “content partners” with YouTube,
they share in a portion of the advertising revenue generated. Lenz is not
a content partner and no advertisements appear next to the video.
                 LENZ V. UNIVERSAL MUSIC                     7

returned by his online search query. When reviewing such
videos, he evaluated whether they “embodied a Prince
composition” by making “significant use of . . . the
composition, specifically if the song was recognizable, was
in a significant portion of the video or was the focus of the
video.” According to Allen, “[t]he general guidelines are that
. . . we review the video to ensure that the composition was
the focus and if it was we then notify YouTube that the video
should be removed.”

    Johnson contrasted videos that met this criteria to those
“that may have had a second or less of a Prince song, literally
a one line, half line of Prince song” or “were shot in
incredibly noisy environments, such as bars, where there
could be a Prince song playing deep in the background . . . to
the point where if there was any Prince composition
embodied . . . in those videos that it was distorted beyond
reasonable recognition.” None of the video evaluation
guidelines explicitly include consideration of the fair use
doctrine.

    When Johnson reviewed Lenz’s video, he recognized
Let’s Go Crazy immediately. He noted that it played loudly
in the background throughout the entire video. Based on
these details, the video’s title, and Lenz’s query during the
video asking if her son liked the song, he concluded that
Prince’s song “was very much the focus of the video.” As a
result, Johnson decided the video should be included in a
takedown notification sent to YouTube that listed more than
200 YouTube videos Universal believed to be making
8                   LENZ V. UNIVERSAL MUSIC

unauthorized use of Prince’s songs.2 The notice included a
“good faith belief” statement as required by 17 U.S.C.
§ 512(c)(3)(A)(v): “We have a good faith belief that the
above-described activity is not authorized by the copyright
owner, its agent, or the law.”

    After receiving the takedown notification, YouTube
removed the video and sent Lenz an email on June 5, 2007,
notifying her of the removal. On June 7, 2007, Lenz
attempted to restore the video by sending a counter-
notification to YouTube pursuant to § 512(g)(3). After
YouTube provided this counter-notification to Universal per
§ 512(g)(2)(B), Universal protested the video’s reinstatement
because Lenz failed to properly acknowledge that her
statement was made under penalty of perjury, as required by
§ 512(g)(3)(C). Universal’s protest reiterated that the video
constituted infringement because there was no record that
“either she or YouTube were ever granted licenses to
reproduce, distribute, publicly perform or otherwise exploit
the Composition.” The protest made no mention of fair use.
After obtaining pro bono counsel, Lenz sent a second
counter-notification on June 27, 2007, which resulted in
YouTube’s reinstatement of the video in mid-July.

                                   II

   Lenz filed the instant action on July 24, 2007, and her
Amended Complaint on August 15, 2007. After the district
court dismissed her tortious interference claim and request for


 2
  “[T]he parties do not dispute that Lenz used copyrighted material in her
video or that Universal is the true owner of Prince’s copyrighted music.”
Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1153–54 (N.D. Cal.
2008).
                LENZ V. UNIVERSAL MUSIC                     9

declaratory relief, Lenz filed her Second Amended Complaint
on April 18, 2008, alleging only a claim for misrepresentation
under § 512(f). The district court denied Universal’s motion
to dismiss the action.

    On February 25, 2010, the district court granted Lenz’s
partial motion for summary judgment on Universal’s six
affirmative defenses, including the third affirmative defense
that Lenz suffered no damages. Both parties subsequently
moved for summary judgment on Lenz’s § 512(f)
misrepresentation claim. On January 24, 2013, the district
court denied both motions in an order that is now before us.

    The district court certified its summary judgment order
for interlocutory appeal under 28 U.S.C. § 1292(b), and
stayed proceedings in district court pending resolution of the
appeal. We granted the parties permission to bring an
interlocutory appeal.

                             III

    We review de novo the district court’s denial of summary
judgment. When doing so, we “must determine whether the
evidence, viewed in a light most favorable to the non-moving
party, presents any genuine issues of material fact and
whether the district court correctly applied the law.” Warren
v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On
cross-motions for summary judgment, we evaluate each
motion independently, “giving the nonmoving party in each
instance the benefit of all reasonable inferences.” ACLU v.
City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).

   When evaluating an interlocutory appeal, we “may
address any issue fairly included within the certified order
10               LENZ V. UNIVERSAL MUSIC

because it is the order that is appealable, and not the
controlling question identified by the district court.” Yamaha
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)
(emphasis in original) (quotation omitted). We may therefore
“address those issues material to the order from which appeal
has been taken.” In re Cinematronics, Inc., 916 F.2d 1444,
1449 (9th Cir. 1990) (emphasis in original) (permitting
appellate review of a ruling issued prior to the order certified
for interlocutory appeal).

                              IV

     Effective on October 28, 1998, the DMCA added new
sections to existing copyright law by enacting five Titles,
only one of which is relevant here: Title II—Online
Copyright Infringement Liability Limitation Act—now
codified in 17 U.S.C. § 512. Sections 512(c), (f), and (g) are
at the heart of the parties’ dispute.

                               A

     Section 512(c) permits service providers, e.g., YouTube
or Google, to avoid copyright infringement liability for
storing users’ content if—among other requirements—the
service provider “expeditiously” removes or disables access
to the content after receiving notification from a copyright
holder that the content is infringing. 17 U.S.C. § 512(c).
Section 512(c)(3)(A) sets forth the elements that such a
“takedown notification” must contain. These elements
include identification of the copyrighted work, identification
of the allegedly infringing material, and, critically, a
statement that the copyright holder believes in good faith the
infringing material “is not authorized by the copyright owner,
its agent, or the law.” Id. § 512(c)(3)(A). The procedures
                 LENZ V. UNIVERSAL MUSIC                     11

outlined in § 512(c) are referred to as the DMCA’s
“takedown procedures.”

    To avoid liability for disabling or removing content, the
service provider must notify the user of the takedown. Id.
§ 512(g)(1)–(2). The user then has the option of restoring the
content by sending a counter-notification, which must include
a statement of “good faith belief that the material was
removed or disabled as a result of mistake or
misidentification . . . .” Id. § 512(g)(3)(C). Upon receipt of
a valid counter-notification, the service provider must inform
the copyright holder of the counter-notification and restore
the content within “not less than 10, nor more than 14,
business days,” unless the service provider receives notice
that the copyright holder has filed a lawsuit against the user
seeking to restrain the user’s infringing behavior. Id.
§ 512(g)(2)(B)–(C). The procedures outlined in § 512(g) are
referred to as the DMCA’s “put-back procedures.”

    If an entity abuses the DMCA, it may be subject to
liability under § 512(f). That section provides: “Any person
who knowingly materially misrepresents under this
section—(1) that material or activity is infringing, or (2) that
material or activity was removed or disabled by mistake or
misidentification, shall be liable for any damages . . . .” Id.
§ 512(f). Subsection (1) generally applies to copyright
holders and subsection (2) generally applies to users. Only
subsection (1) is at issue here.

                               B

   We must first determine whether 17 U.S.C.
§ 512(c)(3)(A)(v) requires copyright holders to consider
whether the potentially infringing material is a fair use of a
12               LENZ V. UNIVERSAL MUSIC

copyright under 17 U.S.C. § 107 before issuing a takedown
notification. Section 512(c)(3)(A)(v) requires a takedown
notification to include a “statement that the complaining party
has a good faith belief that the use of the material in the
manner complained of is not authorized by the copyright
owner, its agent, or the law.” The parties dispute whether fair
use is an authorization under the law as contemplated by the
statute—which is so far as we know an issue of first
impression in any circuit across the nation. “Canons of
statutory construction dictate that if the language of a statute
is clear, we look no further than that language in determining
the statute’s meaning. . . . A court looks to legislative history
only if the statute is unclear.” United States v. Lewis, 67 F.3d
225, 228–29 (9th Cir. 1995) (citations omitted). We agree
with the district court and hold that the statute unambiguously
contemplates fair use as a use authorized by the law.

    Fair use is not just excused by the law, it is wholly
authorized by the law. In 1976, Congress codified the
application of a four-step test for determining the fair use of
copyrighted works:

        Notwithstanding the provisions of sections
        106 and 106A, the fair use of a copyrighted
        work, . . . for purposes such as criticism,
        comment, news reporting, teaching (including
        multiple copies for classroom use),
        scholarship, or research, is not an
        infringement of copyright. In determining
        whether the use made of a work in any
        particular case is a fair use the factors to be
        considered shall include—
                 LENZ V. UNIVERSAL MUSIC                    13

           (1) the purpose and character of the use,
           including whether such use is of a
           commercial nature or is for nonprofit
           educational purposes;

           (2) the nature of the copyrighted work;

           (3) the amount and substantiality of the
           portion used in relation to the copyrighted
           work as a whole; and

           (4) the effect of the use upon the potential
           market for or value of the copyrighted
           work.

       The fact that a work is unpublished shall not
       itself bar a finding of fair use if such finding
       is made upon consideration of all the above
       factors.

17 U.S.C. § 107 (emphasis added). The statute explains that
the fair use of a copyrighted work is permissible because it is
a non-infringing use.

    While Title 17 of the United States Code (“Copyrights”)
does not define the term “authorize” or “authorized,” “[w]hen
there is no indication that Congress intended a specific legal
meaning for the term, the court may look to sources such as
dictionaries for a definition.” United States v. Mohrbacher,
182 F.3d 1041, 1048 (9th Cir. 1999). Black’s Law Dictionary
defines “authorize” as “1. To give legal authority; to
empower” and “2. To formally approve; to sanction.”
Authorize, Black’s Law Dictionary (10th ed. 2014). Because
17 U.S.C. § 107 both “empowers” and “formally approves”
14               LENZ V. UNIVERSAL MUSIC

the use of copyrighted material if the use constitutes fair use,
fair use is “authorized by the law” within the meaning of
§ 512(c). See also 17 U.S.C. § 108(f)(4) (“Nothing in this
section in any way affects the right of fair use as provided by
section 107 . . . .” (emphasis added)).

    Universal’s sole textual argument is that fair use is not
“authorized by the law” because it is an affirmative defense
that excuses otherwise infringing conduct. Universal’s
interpretation is incorrect as it conflates two different
concepts: an affirmative defense that is labeled as such due to
the procedural posture of the case, and an affirmative defense
that excuses impermissible conduct. Supreme Court
precedent squarely supports the conclusion that fair use does
not fall into the latter camp: “[A]nyone who . . . makes a fair
use of the work is not an infringer of the copyright with
respect to such use.” Sony Corp. of Am. v. Universal City
Studios, Inc., 464 U.S. 417, 433 (1984).

    Given that 17 U.S.C. § 107 expressly authorizes fair use,
labeling it as an affirmative defense that excuses conduct is
a misnomer:

       Although the traditional approach is to view
       “fair use” as an affirmative defense, this
       writer, speaking only for himself, is of the
       opinion that it is better viewed as a right
       granted by the Copyright Act of 1976.
       Originally, as a judicial doctrine without any
       statutory basis, fair use was an infringement
       that was excused—this is presumably why it
       was treated as a defense. As a statutory
       doctrine, however, fair use is not an
       infringement. Thus, since the passage of the
                 LENZ V. UNIVERSAL MUSIC                     15

       1976 Act, fair use should no longer be
       considered an infringement to be excused;
       instead, it is logical to view fair use as a right.
       Regardless of how fair use is viewed, it is
       clear that the burden of proving fair use is
       always on the putative infringer.

Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th
Cir. 1996) (Birch, J.). We agree. Cf. Lydia Pallas Loren,
Fair Use: An Affirmative Defense?, 90 Wash. L. Rev. 685,
688 (2015) (“Congress did not intend fair use to be an
affirmative defense—a defense, yes, but not an affirmative
defense.”). Fair use is therefore distinct from affirmative
defenses where a use infringes a copyright, but there is no
liability due to a valid excuse, e.g., misuse of a copyright,
Practice Management Information Corp. v. American
Medical Ass’n, 121 F.3d 516, 520 (9th Cir. 1997), and laches,
Danjaq LLC v. Sony Corp., 263 F.3d 942, 950–51 (9th Cir.
2001).

    Universal concedes it must give due consideration to
other uses authorized by law such as compulsory licenses.
The introductory language in 17 U.S.C. § 112 for compulsory
licenses closely mirrors that in the fair use statute. Compare
17 U.S.C. § 112(a)(1) (“Notwithstanding the provisions of
section 106, . . . it is not an infringement of copyright for a
transmitting organization entitled to transmit to the public a
performance or display of a work . . . to make no more than
one copy or phonorecord of a particular transmission program
embodying the performance or display . . . .”), with id. § 107
(“Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work . . . is not an infringement
of copyright.”). That fair use may be labeled as an affirmative
defense due to the procedural posture of the case is no
16               LENZ V. UNIVERSAL MUSIC

different than labeling a license an affirmative defense for the
same reason. Compare Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 573 & n.3, 590 (1994) (stating that “fair use is
an affirmative defense” where the district court converted a
motion to dismiss based on fair use into a motion for
summary judgment), with A&M Records, Inc. v. Napster,
Inc., 239 F.3d 1004, 1025–26 (9th Cir. 2001) (“Napster
contends that . . . the district court improperly rejected valid
affirmative defenses of . . . implied license . . . .”). Thus,
Universal’s argument that it need not consider fair use in
addition to compulsory licenses rings hollow.

    Even if, as Universal urges, fair use is classified as an
“affirmative defense,” we hold—for the purposes of the
DMCA—fair use is uniquely situated in copyright law so as
to be treated differently than traditional affirmative defenses.
We conclude that because 17 U.S.C. § 107 created a type of
non-infringing use, fair use is “authorized by the law” and a
copyright holder must consider the existence of fair use
before sending a takedown notification under § 512(c).

                               C

    We must next determine if a genuine issue of material
fact exists as to whether Universal knowingly misrepresented
that it had formed a good faith belief the video did not
constitute fair use. This inquiry lies not in whether a court
would adjudge the video as a fair use, but whether Universal
formed a good faith belief that it was not. Contrary to the
district court’s holding, Lenz may proceed under an actual
knowledge theory, but not under a willful blindness theory.
                 LENZ V. UNIVERSAL MUSIC                     17

                               1

    Though Lenz argues Universal should have known the
video qualifies for fair use as a matter of law, we have
already decided a copyright holder need only form a
subjective good faith belief that a use is not authorized. Rossi
v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000 (9th Cir.
2004). In Rossi, we explicitly held that “the ‘good faith
belief’ requirement in § 512(c)(3)(A)(v) encompasses a
subjective, rather than objective standard,” and we observed
that “Congress understands this distinction.” Id. at 1004. We
further held:

       When enacting the DMCA, Congress could
       have easily incorporated an objective standard
       of reasonableness. The fact that it did not do
       so indicates an intent to adhere to the
       subjective standard traditionally associated
       with a good faith requirement. . . .

       In § 512(f), Congress included an expressly
       limited cause of action for improper
       infringement notifications, imposing liability
       only if the copyright owner’s notification is a
       knowing misrepresentation. A copyright
       owner cannot be liable simply because an
       unknowing mistake is made, even if the
       copyright owner acted unreasonably in
       making the mistake. Rather, there must be a
       demonstration of some actual knowledge of
       misrepresentation on the part of the copyright
       owner.
18                  LENZ V. UNIVERSAL MUSIC

Id. at 1004–05 (citations omitted). Neither of these holdings
are dictum. See United States v. Johnson, 256 F.3d 895, 914
(9th Cir. 2001) (en banc) (“[W]here a panel confronts an
issue germane to the eventual resolution of the case, and
resolves it after reasoned consideration in a published
opinion, that ruling becomes the law of the circuit, regardless
of whether doing so is necessary in some strict logical
sense.”). We therefore judge Universal’s actions by the
subjective beliefs it formed about the video.

                                    2

     Universal faces liability if it knowingly misrepresented in
the takedown notification that it had formed a good faith
belief the video was not authorized by the law, i.e., did not
constitute fair use. Here, Lenz presented evidence that
Universal did not form any subjective belief about the video’s
fair use—one way or another— because it failed to consider
fair use at all, and knew that it failed to do so. Universal
nevertheless contends that its procedures, while not formally
labeled consideration of fair use, were tantamount to such
consideration. Because the DMCA requires consideration of
fair use prior to sending a takedown notification, a jury must
determine whether Universal’s actions were sufficient to form
a subjective good faith belief about the video’s fair use or
lack thereof.3

 3
   Although the panel agrees on the legal principles we discuss herein, we
part company with our dissenting colleague over the propriety of resolving
on summary judgment Universal’s claim to subjective belief that the
copyright was infringed. The dissent would find that no triable issue of
fact exists because Universal did not specifically and expressly consider
the fair-use elements of 17 U.S.C. § 107. But the question is whether the
analysis Universal did conduct of the video was sufficient, not to
conclusively establish as a matter of law that the video’s use of Let’s Go
                   LENZ V. UNIVERSAL MUSIC                            19

     To be clear, if a copyright holder ignores or neglects our
unequivocal holding that it must consider fair use before
sending a takedown notification, it is liable for damages
under § 512(f). If, however, a copyright holder forms a
subjective good faith belief the allegedly infringing material
does not constitute fair use, we are in no position to dispute
the copyright holder’s belief even if we would have reached
the opposite conclusion. A copyright holder who pays lip
service to the consideration of fair use by claiming it formed
a good faith belief when there is evidence to the contrary is
still subject to § 512(f) liability. Cf. Disney Enters., Inc. v.
Hotfile Corp., No. 11-cv-20427, 2013 WL 6336286, at *48
(S.D. Fla. Sept. 20, 2013) (denying summary judgment of
§ 512(f) counterclaim due to “sufficient evidence in the
record to suggest that [Plaintiff] Warner intentionally targeted
files it knew it had no right to remove”); Rosen v. Hosting
Servs., Inc., 771 F. Supp. 2d 1219, 1223 (C.D. Cal. 2010)
(denying summary judgment of § 512(f) counterclaim where
the takedown notification listed four URL links that did not
contain content matching the description of the purportedly
infringed material); Online Policy Grp. v. Diebold, Inc.,
337 F. Supp. 2d 1195, 1204–05 (N.D. Cal. 2004) (“[T]here is
no genuine issue of fact that Diebold knew—and indeed that
it specifically intended—that its letters to OPG and
Swarthmore would result in prevention of publication of that
content. . . . The fact that Diebold never actually brought suit
against any alleged infringer suggests strongly that Diebold
sought to use the DMCA’s safe harbor provisions—which
were designed to protect ISPs, not copyright holders—as a



Crazy was fair, but to form a subjective good faith belief that the video
was infringing on Prince’s copyright. And under the circumstances of this
case, that question is for the jury, not this court, to decide.
20               LENZ V. UNIVERSAL MUSIC

sword to suppress publication of embarrassing content rather
than as a shield to protect its intellectual property.”).

                              3

    We hold the willful blindness doctrine may be used to
determine whether a copyright holder “knowingly materially
misrepresent[ed]” that it held a “good faith belief” the
offending activity was not a fair use. See 17 U.S.C.
§ 512(c)(3)(A)(v), (f). “[T]he willful blindness doctrine may
be applied, in appropriate circumstances, to demonstrate
knowledge or awareness of specific instances of infringement
under the DMCA.” Viacom Int’l, Inc. v. YouTube, Inc.,
676 F.3d 19, 35 (2d Cir. 2012) (interpreting how a party can
establish the “actual knowledge”—a subjective belief—
required by § 512(c)(1)(A)(I)); see also UMG Recordings,
Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1023
(9th Cir. 2013) (“Of course, a service provider cannot
willfully bury its head in the sand to avoid obtaining such
specific knowledge.” (citing Viacom, 676 F.3d at 31)). But,
based on the specific facts presented during summary
judgment, we reject the district court’s conclusion that Lenz
may proceed to trial under a willful blindness theory.

    To demonstrate willful blindness a plaintiff must establish
two factors: “(1) the defendant must subjectively believe that
there is a high probability that a fact exists and (2) the
defendant must take deliberate actions to avoid learning of
that fact.” Global-Tech Appliances, Inc. v. SEB S.A., 131 S.
Ct. 2060, 2070 (2011). “Under this formulation, a willfully
blind defendant is one who takes deliberate actions to avoid
confirming a high probability of wrongdoing and who can
almost be said to have actually known the critical facts.” Id.
at 2070–71. To meet the Global-Tech test, Lenz must
                LENZ V. UNIVERSAL MUSIC                    21

demonstrate a genuine issue as to whether—before sending
the takedown notification—Universal (1) subjectively
believed there was a high probability that the video
constituted fair use, and (2) took deliberate actions to avoid
learning of this fair use.

    On summary judgment Lenz failed to meet a threshold
showing of the first factor. To make such a showing, Lenz
must provide evidence from which a juror could infer that
Universal was aware of a high probability the video
constituted fair use. See United States v. Yi, 704 F.3d 800,
805 (9th Cir. 2013). But she failed to provide any such
evidence. The district court therefore correctly found that
“Lenz does not present evidence suggesting Universal
subjectively believed either that there was a high probability
any given video might make fair use of a Prince composition
or her video in particular made fair use of Prince’s song
‘Let’s Go Crazy.’” Yet the district court improperly denied
Universal’s motion for summary judgment on the willful
blindness theory because Universal “has not shown that it
lacked a subjective belief.” By finding blame with
Universal’s inability to show that it “lacked a subjective
belief,” the district court improperly required Universal to
meet its burden of persuasion, even though Lenz had failed to
counter the initial burden of production that Universal
successfully carried. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Lenz may not
therefore proceed to trial on a willful blindness theory.

                              V

    Section 512(f) provides for the recovery of “any damages,
including costs and attorneys[’] fees, incurred by the alleged
22                 LENZ V. UNIVERSAL MUSIC

infringer . . . who is injured by such misrepresentation, as the
result of the service provider relying upon such
misrepresentation in removing or disabling access to the
material or activity claimed to be infringing . . . .” 17 U.S.C.
§ 512(f). We hold a plaintiff may seek recovery of nominal
damages for an injury incurred as a result of a § 512(f)
misrepresentation.

    Universal incorrectly asserts that Lenz must demonstrate
she incurred “actual monetary loss.” Section 512(k) provides
a definition for “monetary relief” as “damages, costs,
attorneys[’] fees, and any other form of monetary payment.”
The term “monetary relief” appears in § 512(a), (b)(1), (c)(1),
and (d), but is notably absent from § 512(f). As a result, the
damages an alleged infringer may recover under § 512(f)
from “any person” are broader than monetary relief.4 Cf.
United States v. James, 478 U.S. 597, 605 (1986) (“Congress’
choice of the language ‘any damage’ . . . undercuts a narrow
construction.”), abrogated on other grounds by Cent. Green
Co. v. United States, 531 U.S. 425 (2001). Because Congress
specified the recovery of “any damages,” we reject
Universal’s contention that Congress did not indicate its
intent to depart from the common law presumption that a
misrepresentation plaintiff must have suffered a monetary
loss. See Keene Corp. v. United States, 508 U.S. 200, 208
(1993) (“Where Congress includes particular language in one
section of a statute but omits it in another, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” (quotation omitted)).


     4
     Title I of the DMCA specifies recovery for “actual damages.”
17 U.S.C. § 1203(c)(1)(A). If Congress intended to similarly limit the
recovery of § 512(f) damages to pecuniary losses, it could have chosen to
do so.
                    LENZ V. UNIVERSAL MUSIC                           23

    Lenz may seek recovery of nominal damages due to an
unquantifiable harm suffered as a result of Universal’s
actions.5 The DMCA is akin to a statutorily created
intentional tort whereby an individual may recover nominal
damages for a “knowingly material misrepresent[ation] under
this section [512].” 17 U.S.C. § 512(f); cf. Memphis Cmty.
Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986) (“We have
repeatedly noted that 42 U.S.C. § 1983 creates a species of
tort liability in favor of persons who are deprived of rights,
privileges, or immunities secured to them by the Constitution.
Accordingly, when § 1983 plaintiffs seek damages for
violations of constitutional rights, the level of damages is
ordinarily determined according to principles derived from
the common law of torts.” (quotation and citations omitted)).

    “In a number of common law actions associated with
intentional torts, the violation of the plaintiff’s right has
generally been regarded as a kind of legal damage in itself.
The plaintiff who proves an intentional physical tort to the
person or to property can always recover nominal damages.”
3 Dan B. Dobbs et al., The Law of Torts § 480 (2d ed. 2011).
The tort need not be physical in order to recover nominal
damages. Defamation, for example, permits the recovery of
nominal damages:

         A nominal damage award can be justified in a
         tort action only if there is some reason for
         awarding a judgment in favor of a claimant
         who has not proved or does not claim a


 5
   Lenz may not recover nominal damages for “impairment of free speech
rights.” No authority supports the recovery of nominal damages caused
by a private actor’s chilling of free speech rights. All of the cases Lenz
cites address challenges to governmental action.
24              LENZ V. UNIVERSAL MUSIC

       compensable loss with sufficient certainty to
       justify a recovery of compensatory or actual
       damages. There may be such a reason in an
       action for defamation, since a nominal
       damage award serves the purpose of
       vindicating the plaintiff’s character by a
       verdict of the jury that establishes the falsity
       of the defamatory matter.

W. Page Keeton et al., Prosser and Keeton on Torts § 116A,
at 845 (5th ed. 1984). Also, individuals may recover nominal
damages for trespass to land, even though the trespasser’s
“presence on the land causes no harm to the land [or] its
possessor . . . .” Restatement (Second) of Torts § 163 &
cmts. d, e (1965).

   The district court therefore properly concluded in its 2010
order:

       The use of “any damages” suggests strongly
       Congressional intent that recovery be
       available for damages even if they do not
       amount to . . . substantial economic damages
       . . . . Requiring a plaintiff who can [show
       that the copyright holder knowingly
       misrepresented its subjective good faith] to
       demonstrate in addition not only that she
       suffered damages but also that those damages
       were economic and substantial would vitiate
       the deterrent effect of the statute.

Lenz v. Universal Music Corp., No. C 07-3783 JF, 2010 WL
702466, at *10 (N.D. Cal., Feb. 25, 2010). Relying on this
opinion, the Southern District of Florida held the same.
                 LENZ V. UNIVERSAL MUSIC                    25

Hotfile, 2013 WL 6336286, at *48 (“[T]he Court observes
that the quantity of economic damages to Hotfile’s system is
necessarily difficult to measure with precision and has led to
much disagreement between the parties and their experts.
Notwithstanding this difficulty, the fact of injury has been
shown, and Hotfile’s expert can provide the jury with a
non-speculative basis to assess damages.”).

    We agree that Lenz may vindicate her statutorily created
rights by seeking nominal damages. Because a jury has not
yet determined whether Lenz will prevail at trial, we need not
decide the scope of recoverable damages, i.e., whether she
may recover expenses following the initiation of her § 512(f)
suit or pro bono costs and attorneys’ fees, both of which arose
as a result of the injury incurred.

                              VI

    Copyright holders cannot shirk their duty to consider—in
good faith and prior to sending a takedown notification—
whether allegedly infringing material constitutes fair use, a
use which the DMCA plainly contemplates as authorized by
the law. That this step imposes responsibility on copyright
holders is not a reason for us to reject it. Cf. Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 123–24
(1980) (“[A]ny increased burdens imposed on the
Commission as a result of its compliance with [the Consumer
Product Safety Act] were intended by Congress in striking an
appropriate balance between the interests of consumers and
the need for fairness and accuracy with respect to information
disclosed by the Commission. Thus, petitioners’ claim that
the Commission’s compliance with the requirements of [the
Act] will impose undue burdens on the Commission is
properly addressed to Congress, not to this Court.”). We
26               LENZ V. UNIVERSAL MUSIC

affirm the district court’s order denying the parties’ cross-
motions for summary judgment.

     AFFIRMED. Each party shall bear its own costs.



M. SMITH, Circuit Judge, concurring in part and dissenting
in part:

    I concur in all but Part IV.C of the majority opinion.
However, I disagree with the majority’s conclusion that
“whether Universal’s actions were sufficient to form a
subjective good faith belief about the video’s fair use or lack
thereof” presents a triable issue of fact. Universal admittedly
did not consider fair use before notifying YouTube to take
down Lenz’s video. It therefore could not have formed a good
faith belief that Lenz’s video was infringing, and its
notification to the contrary was a knowing material
misrepresentation. Accordingly, I would hold that Lenz is
entitled to summary judgment.

    I agree with the majority’s conclusion that
§ 512(c)(3)(A)(v) requires copyright holders to consider
whether potentially infringing material is a fair use before
issuing a takedown notice. As the majority explains, a
takedown notice must contain “[a] statement that the
complaining party has 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.” 17 U.S.C.
§ 512(c)(3)(A)(v). Because fair use of copyrighted material
is not an infringement of copyright, such use is “authorized
by . . . the law.” See id. § 107. Therefore, in order to form “a
good faith belief that use of the material in the manner
                    LENZ V. UNIVERSAL MUSIC                              27

complained of is not authorized by . . . the law,”
§ 512(c)(3)(A)(v), a party must consider the doctrine of fair
use. I also agree with the majority that § 512(f) provides a
party injured by a violation of § 512(c)(3)(A)(v) with a right
of action for damages, including nominal damages.

    However, I part ways with the majority on two issues.
First, I would clarify that § 512(f)’s requirement that a
misrepresentation be “knowing[]” is satisfied when the party
knows that it is ignorant of the truth or falsity of its
representation. Second, I would hold that Universal’s actions
were insufficient as a matter of law to form a subjective
good-faith belief that Lenz’s video was not a fair use.

                                     I

    Section 512(f) requires that a misrepresentation be
“knowing[]” to incur liability. In my view, when the
misrepresentation concerns § 512(c)(3)(A)(v), the knowledge
requirement is satisfied when the party knows that it has not
considered fair use. That is, Universal need not have known
that the video was a fair use, or that its actions were
insufficient to form a good-faith belief about fair use. It need
only have known that it had not considered fair use as such.1

    As the majority explains, we have previously held in
Rossi v. Motion Picture Ass’n of Am. Inc. that “the ‘good faith
belief’ requirement in § 512(c)(3)(A)(v) encompasses a


 1
   I do not believe that, in this regard, my construction conflicts with that
of the majority. Although the majority does not squarely address
§ 512(f)’s scienter requirement, it leaves for the jury only the question
“whether Universal’s actions were sufficient to form a subjective good
faith belief about the video’s fair use or lack thereof.”
28                 LENZ V. UNIVERSAL MUSIC

subjective, rather than objective, standard.” 391 F.3d 1000,
1004 (9th Cir. 2004). Rossi reasoned that a subjective
standard comported with § 512(f)’s requirement that
actionable misrepresentations be “knowing[]”, and ultimately
held that liability under § 512(f) requires “a demonstration of
some actual knowledge of misrepresentation on the part of
the copyright owner.” 391 F.3d at 1005.

    Universal urges us to construe Rossi to mean that liability
attaches under § 512(f) only if a party subjectively believes
that its assertion is false. But under long-settled principles of
deceit and fraudulent misrepresentation, a party need only
know that it is ignorant of the truth or falsity of its
representation for its misrepresentation to be knowing. For
example, in Cooper v. Schlesinger, 111 U.S. 148, 155 (1884),
the Supreme Court explained that “a statement recklessly
made, without knowledge of its truth, [is] a false statement
knowingly made, within the settled rule.”2 Similarly, under
the common law, “[a] misrepresentation is fraudulent if the
maker . . . knows or believes that the matter is not as he
represents it to be, . . . [or] knows that he does not have the
basis for his representation that he states or implies.”
Restatement (Second) of Torts § 526 (emphasis added).3


 2
   See also Sovereign Pocahontas Co. v. Bond, 120 F.2d 39, 39–40 (D.C.
Cir. 1941); Knickerbocker Merch. Co. v. United States, 13 F.2d 544, 546
(2d Cir. 1926); L J Mueller Furnace Co. v. Cascade Foundry Co., 145 F.
596, 600 (3d Cir. 1906); Hindman v. First Nat’l Bank, 112 F. 931, 944
(6th Cir. 1902).
     3
     The Second Restatement refers to “fraudulent misrepresentation,”
rather than “knowing” misrepresentation. See Restatement (Second) of
Torts § 526. However, as the Restatement clarifies, the requirement that
a misrepresentation be “fraudulent” refers “solely” to the party’s
knowledge of misrepresentation. See id. cmt. a. The Restatement’s
                    LENZ V. UNIVERSAL MUSIC                            29

    One who asserts a belief that a work is infringing without
considering fair use lacks a basis for that belief. It follows
that one who knows that he has not considered fair use knows
that he lacks a basis for that belief. That is sufficient “actual
knowledge of misrepresentation” to meet the scienter
requirement of § 512(f). See Rossi, 391 F.3d at 1005. Thus,
to be held liable under § 512(f), Universal need only have
failed to consider fair use, and known that it had failed to
consider fair use.

                                    II

    It is undisputed that Universal’s policy was to issue a
takedown notice where a copyrighted work was used as “the
focus of the video” or “prominently featured in the video.”
By Universal’s own admission, its agents were not instructed
to consider whether the use was fair. Instead, Universal
directed its agents to spare videos that had “a second or less
of a Prince song” or where the song was “distorted beyond
reasonable recognition.” And yet, from this, the majority
concludes that “whether Universal’s actions were sufficient
to form a subjective good faith belief about the video’s fair
use or lack thereof” presents a triable issue of fact.

    I respectfully disagree. The Copyright Act explicitly
enumerates the factors to be considered in assessing whether
use of copyrighted material is fair. 17 U.S.C. § 107.
Universal’s policy was expressly to determine whether a
video made “significant use”—not fair use—of the work.
Nothing in Universal’s methodology considered the purpose
and character of the use, the commercial or noncommercial


definition of “fraudulent” is therefore persuasive authority for construing
the meaning of “knowingly.”
30                  LENZ V. UNIVERSAL MUSIC

nature of the use, or whether the use would have a significant
impact on the market for the copyrighted work.4 See § 107.
There is therefore no disputed issue of fact: Universal did not
consider fair use before issuing a takedown notice.

    Moreover, Universal knew it had not considered fair use,
because § 107 explicitly supplies the factors that “shall” be
considered in determining whether a use is fair. Id. I see no
reason in law or logic to excuse copyright holders from the
general principle that knowledge of the law is presumed. See
United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558,
562–63 (1971) (holding that the use of the word “knowingly”
did not evince a legislative intent to “carv[e] out an exception
to the general rule that ignorance of the law is no excuse”).
As explained above, that is sufficient in my view to conclude
that Universal’s takedown notice was a knowing
misrepresentation.

   Based on Rossi’s holding that a subjective good-faith
belief in infringement is sufficient to satisfy
§ 512(c)(3)(A)(v), 391 F.3d at 1005, the majority disagrees.
But the majority’s reading of Rossi would insulate from

 4
    Had Universal properly considered the statutory elements of fair use,
there is no doubt that it would have concluded that Lenz’s use of Let’s Go
Crazy was fair. See, e.g., TCA Television Corp. v. McCollum, 2015 WL
9255341 (S.D.N.Y. Dec. 17, 2015) (finding on a motion to dismiss that
the use in a Broadway show of one minute and seven seconds of the
Abbott and Costello routine Who’s On First? was fair because the use was
“highly transformative” and unlikely to usurp the market for the original);
SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273 (9th Cir. 2013)
(affirming summary judgment that use of a seven-second clip of The Ed
Sullivan Show was fair for similar reasons). Universal’s “significant use”
analysis, by contrast, is more like determining whether a use is de minimis,
a much more stringent test than fair use. See Sandoval v. New Line
Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998).
                    LENZ V. UNIVERSAL MUSIC                              31

liability any subjective belief in infringement, no matter how
poorly formed. Rossi did not abrogate the statutory
requirement that the belief be held in good faith. I would
therefore hold that a belief in infringement formed
consciously without considering fair use is no good-faith
belief at all. See Cooper, 111 U.S. at 155 (holding that such
a belief is a knowing misrepresentation). And to assert in
good faith that a use is not fair, a party must consider the
statutory elements of fair use set forth in § 107. Merely
evaluating whether a use is “significant” is not enough.

     The majority’s unfortunate interpretation of § 512(f)
would permit a party to avoid liability with only the most
perfunctory attention to fair use. Such a construction
eviscerates § 512(f) and leaves it toothless against frivolous
takedown notices. And, in an era when a significant
proportion of media distribution and consumption takes place
on third-party safe harbors such as YouTube,5 if a creative
work can be taken down without meaningfully considering
fair use, then the viability of the concept of fair use itself is in
jeopardy. Such a construction of § 512(f) cannot comport
with the intention of Congress.

                                   ***

    In sum: Universal represented that it had formed a good-
faith belief that Lenz’s video was an infringement of
copyright—that is, that the video was not fair use. Because


      5
          See Statistics, YouTube, https://www.youtube.com/yt/press/
statistics.html (last visited Feb. 2, 2016) (reporting that “every day people
watch hundreds of millions of hours on YouTube” and that YouTube
“reaches more 18–34 and 18–49 year-olds than any cable network in the
U.S.”).
32              LENZ V. UNIVERSAL MUSIC

Universal did not actually consider the factors constituting
fair use, its representation was false—a misrepresentation.
Because those factors are set forth in § 107 (and § 107
expressly states that a fair use “is not an infringement of
copyright”), Universal’s misrepresentation was knowing. And
because there is no further disputed issue of fact concerning
liability, I respectfully dissent.
