Essentially, it was this standard that Congress was trying to mimic in the DMCA’s requirement that the copyright holder certify under oath that the use of the work is "not authorized by law." In other words, that if not removed, the posting would support an infringement lawsuit.

To be fair to Universal, they still take the position that they meet this requirement, and that they would be well within their rights to file an infringement lawsuit against Lenz even today. Under Universal’s reasoning, if they detect that someone has quoted or posted or made some use of a copyrighted work of theirs without their consent (or even where consent is contested by Universal), even if it is readily apparent that the use meets all of the tests for fair use, and even where it is therefore readily apparent to everyone -– including the lawyer who sends out the takedown notice -- that any infringement lawsuit will ultimately fail. Even if the takedown notice is sent for an improper purpose (e.g., to quash dissent, prevent unfavorable reviews, or prevent bad publicity) such a notice is effective and is entitled to be given full effect. Even more egregiously, they can request that the person making such fair use be informed of the illegality of their actions.

Not that anyone would ever file such a lawsuit. Indeed, Universal points out that it has never filed an infringement claim against Lenz. And they probably never will. And that’s partly the point. Because it is so easy to issue a takedown notice, and because there is little blowback if you are wrong, its much easier to just automate the process of looking for potentially infringing works, and then issue blanket DMCA takedowns. (In their defense, Universal does clam that a human looked that Lenz’ video before the notice was issued.

A better approach would be to apply the rules of civil procedure to such takedown notices. The party seeking takedown would have to conduct a reasonable inquiry about the nature of the infringing use, and be capable of certifying in effect a likelihood of success on the merits of a potential infringement claim. They would have to also certify that the takedown notice is not being made for any improper purpose, and would have liability for issuing both knowingly false or negligently (or recklessly) false notices. The ISP or other recipient could then demand additional information from the copyright holder (including the results of the good faith investigation) before taking down the material, and would have no liability if such demand was not made for improper purposes. Thus, the takedown would not be automatic.

All of this would require either judicial or legislative clarification. And both bodies move slowly. In the meantime, you can keep yourself entertained by watching a lovely video of a kid dancing but without music this time -- and that would be crazy.