As he indicated in his earlier decision on fair use, Judge Chhabria just issued his decision granting Meta summary judgment and finding it did not violate the DMCA CMI provision for intentional removal of CMI, Section 1202(b)(1). Meta acted under fair use, not infringement, and therefore a predicate component of the double scienter of 1202(b)(1) is absent.
If a reasonable belief in fair use is enough to vitiate intent, it would seem that an actual fair use should also be (at least where the secondary user also subjectively believed they were making fair use). In other words, in the Ninth Circuit, one can’t intend to abet an infringement where they intend to abet something they think is—and that actually is—fair use.
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