No it doesn't
"The panel held that the DCMA requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law."
https://law.justia.com/cases/federal/appellate-courts/ca9/13...
Have I missed some precedent that overturns this?
"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 defense of this (among other arguments) they cite portions of the US code that explicitly refer to fair use as a "right":
"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 . . . .”"
https://cases.justia.com/federal/appellate-courts/ca9/13-161...
So while your understanding of fair use as merely a defense against infringement may be widely held, and arguably is even the historically accurate position, it doesn't reflect the way that the courts currently interpret the statutes.
Now I agree with your interpretation to an extent, however its only the 9th circuit court. Lenz is also odd in that the person claiming fair use is the plaintiff, and the suit itself is that a DMCA claim was frivolous. The video was restored after her counter-notification, and her lawsuit was later.
A DMCA taketdown request is itself not a lawsuit. So my interpretation of the ruling is not that "you cant sue someone" but that you "cant blast out DMCA notices." I read it as an anti-intimidation ruling. It is clear, that it sees fair use as authorized by law, but it also still categorizes fair use as an affirmative defense.
Ergo, fair use gives you a defacto right to not be harassed.
The affirm part is you conceding you committed the crime, and then you argue it was justified.
Lenz didnt confirm it was an affirmative defense, they ruled the way they did despite admitting it was an affirmative defense, one that can only procedurally arise after you've been accused of a crime.
> According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users.