M. Jake Feaver

Volume 68, Issue 2, 397-418

The internet brought plentiful opportunities for sharing content between individuals. However, along with those opportunities, the potential for abuse and intellectual property infringement increased steadily. When Congress passed the Digital Millennium Copyright Act it attempted to provide protection for the service providers that served as the foundation for the internet’s prosperity and for the content producers who grew its fruits. In accordance with this Act, service providers and copyright enforcers built algorithms to determine when content was infringing and when it was not.

The recent Ninth Circuit decision in Lenz v. Universal Music Corp. established that a copyright holder must “consider fair use” before they can request that content be taken down by a service provider. This Note discusses how an algorithm might “consider fair use” in accordance with Lenz, and argues that in the marginal cases where the likeness is too close to call, human review of potential infringements will nevertheless be necessary to comply with the Digital Millennium Copyright Act.

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