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 “significan ew 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 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, 4 S.Ct. 360 (<HOLDING>). And to assert in good faith that a use is not
holding that the test for good faith is the actual belief of the party and not the reasonableness of that belief holding misrepresentation claim to be preempted holding that such a belief is a knowing misrepresentation holding negligent misrepresentation sufficient holding that misrepresentation was essential to plaintiffs claim