While DMCA notices are a legitimate mechanism for protecting copyrights, there are claims that they are being used to hinder commercial competitors, stifle free speech, and silence critics. A case that went before a Federal Court in Boston yesterday could up the stakes and as such is proving of interest not only to the parties involved, but also the EFF and MPAA.
How does an argument between two bloggers with opposing views on home birthing get so out of hand that the biggest movie studios in the world feel they have to get involved to protect their anti-piracy interests?
In the red corner is Massachusetts resident and plaintiff Amy Tuteur. A former physician and critic of midwifery, Tuteur maintains several blogs including the one at the core of the case, ‘The Skeptical OB’.
In the blue corner is defendant Gina Crosley-Corcoran, a midwife from Illinois and the brains behind the blog ‘The Feminist Breeder’.
Needless to say, the pair haven’t exactly been seeing eye to eye. Following several adversarial encounters, in December 2012 Crosley-Corcoran posted a picture of herself on her blog in which she elevated her middle finger towards Tuteur. The court described it as a depiction of “unrealized ambition of French soldiers at the Battle of Agincourt.”
Crosley-Corcoran suggested that the picture might provide “something else” for Tuteur “to go back to her blog and obsess about.” This only added fuel to the fire as Tuteur promptly re-posted the image on her blog Skeptical OB.
As matters escalated further, Crosley-Corcoran sent a cease and desist letter to Tuteur claiming copyright infringement, backed up by a takedown notice to Bluehost, Tuteur’s webhost. She later bragged that she had used the DMCA to silence her opponent. In retaliation, Tuteur filed a lawsuit claiming that Crosley-Corcoran had abused the DMCA.
In an April 2013 memorandum, the United States District Court of Massachusetts noted that had this been a copyright infringement lawsuit brought by Crosley-Corcoran against Tuteur, the latter would have a Fair Use defense when she posted the image on her blog.
However, the lawsuit was actually brought by Tuteur claiming abuse of the DMCA. Controversially, the District Court said that there is no requirement under that legislation to acknowledge that an alleged infringer might have a Fair Use defense, only a good faith belief the content is being used without permission.
“If fair use and license can be ignored when filing a DMCA takedown notice, persons like the Defendant (and, indeed, far more powerful organizations), would have a safe haven to freely muzzle their critics by literally chasing them off the Internet,” Tuteur filed in response.
“A victim – who did nothing unlawful and whose acts were authorized by the Copyright Act – would be left without recourse and without a voice.”
After earlier jockeying, yesterday Tuteur was in Federal Court in Boston to hear oral argument on motions in the case. Tuteur explains that Crosley-Corcoran is yet to respond to the complaint, having first attempted to have the case against her dismissed on jurisdictional grounds.
“In [Crosley-Corcoran's] original motion to dismiss for lack of jurisdiction, she argued that she had no connection with Massachusetts and did not know that I lived in Massachusetts. However, she is on record directly on her Facebook page, proclaiming that she knew my address on the very day that she filed the second DMCA notice,” Tuteur explains.
Issues of jurisdiction aside, several interested third parties are now involved in the case. The Electronic Frontier Foundation and the Digital Media Law Project of Harvard Law School filed a brief agreeing with Tuteur that Crosley-Corcoran’s behavior constitutes an abuse of the DMCA. The MPAA have filed a brief which appears to side with Crosley-Corcoran.
“The Motion Picture Association of America filed a brief explaining why the DMCA process should not require that copyright holders make an effort to determine if the purported copyright violation was actually covered by the doctrine of Fair Use,” Tuteur explains.
“[The EFF and MPAA] were each granted 15 minutes to argue the specifics of their views of the DMCA and the abuse of the process, and I was fascinated to hear a detailed and extended analysis of the meaning of various parts of the DMCA.”
It’s clear that the EFF would prefer that the DMCA is not used as a tool to silence critics and free speech. Equally, the MPAA sees the DMCA process as a tool to protect their copyrights and is concerned that with a negative outcome it could be rendered less effective. Conducting a Fair Use analysis before sending a takedown notice would be too much of a burden, the Hollywood group believes.
“As a number of tech bloggers have noted, if this isn’t a violation of the DMCA process, there is no such thing as a violation of the DMCA process. That cannot be what Congress intended,” Tuteur says.
“At this point, all I am arguing for is the right to go forward, to have [Crosley-Corcoran] answer the complaint, turn over her documents for review and submit to a deposition to determine what she knew when. We haven’t even gotten to the actual case yet. It is up to the judge to decide if we will ever get to it,” she concludes.
Details of the EFF and MPAA arguments can be found here and here.