The Digitial Millenium Copyright Act of 1998 was an attempt by Congress to modernize the federal Copyright Act by addressing issues arising as a result of new technology and its applications. One provision that has become a source of frustration to many internet users is the "takedown" provision that insulates internet service providers from liability for copyright infringement provided that they remove allegedly infringing content upon notification from the copyright holder. (17 U.S.C. 512(c)(1)). This is why a lot of YouTube videos are no longer available.

All is not lost for YouTube posters, however. Section 512(g) provides for a "counter-notification" from the user whose material was removed as a result of a takedown notification. The user may challenge the takedown and seek restoration of the material. Both the original takedown notification and the counter-notification require that the person submitting them have a good faith belief in the basis of their claims. Section 512(f) provides that if either party makes a "knowing misrepresentation," then it is responsible for damages to the other party. The statute does not specifically mention Fair Use as a factor which must be considered by either party.

A federal Circuit Court recently addressed the question of whether the copyright holder, before issuing a takedown notice to a service provider such as YouTube, must first consider whether the alleged infringement is protected under Fair Use. The Court of Appeals first issued a decision in September 2015, but in response to a request for rehearing, the court issued an amended opinion in the case in March 2016. The amended opinion is the one that controls in this particular circuit.