The MPAA and the Midwives, and Other Cautionary Tales

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As we all know, The Motion Picture Association of America (MPAA) has long taken an active role in the debate regarding the advantages and disadvantages of traditional midwifery and modern medical views regarding childbirth. That’s what Rosemary’s Baby was all about, right? Well, the MPAA filed an amicus brief yet again in a lawsuit between a doctor and a midwife, Tuteur v. Crosley-Corcoran, a pending case in the District of Massachusetts.

Tuteur is a former physician and Crosley-Corcoran is a midwife. They are also both avid bloggers, and it also appears that they do not think highly of each other of nor each other’s views. The two exchanged criticism of each other’s opinions on their respective blogs, The Skeptical OB and The Feminist Breeder. The exchange resulted in Crosley-Corcoran posting a picture of herself giving Tuteur a hand signal, or as the court described it, the digitus impudicus.  Obviously the only appropriate response at that point was for Tuteur to repost the image on her own blog. Crosley-Corcoran then filed a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA) claiming infringement. Thus, the other explanation for the MPAA’s involvement becomes clear. Tuteur sued, alleging that Crosley-Corcoran had made material misrepresentations in her DMCA take-down notices, exposing her to liabililty under Section 512(f) of the DMCA. The MPAA would like to make sure that the subjective test for material misrepresentatives remains as subjective as possible.

I’ve previously discussed potential liability under the provision here. The crux of the debate is whether an individual or entity must consider ifa particular use is protected under the fair use doctrine prior to filing a DMCA takedown notice. The Massachussetts district court joined those courts that have answered in the negative, although the court ultimately denied the Motion to Dismiss. A number of other commentators have provided thoughtful analysis on the case, here, here, and here. The legal issues surrounding liability under 512(f) are likely to stay in the news thanks to an Australian record company’s failure to google the name of their target. Lawrence Lessig, professor and author of many books on copyright law, filed a lawsuit under 512(f) after the company filed a DMCA takedown notice over Lessig’s video lecture discussing fair use.

Certainly there are a lot of interesting legal issues in these cases. Most sides also agree that the process can be (and often is) abused by some individuals and entities. One of the important lessons to take away though is that the rules we enact affect everyone – not just Universal Music Group and Sony Records. The rules will apply to both David and Goliath. Do we really except Ms. Crosley-Corcoran to consider all potential affirmative defenses prior to filing a takedown notice? We can expect individuals to view the work, but I’m not sure we can expect everyone to have an understanding of the often malleable concept of fair use.  While we might all cheer when Lessig sues the Australian record company, or when the single mom sues Universal Music Group, how should we feel when it is David suing David?

The lesson applies equally to legislation and other attempts to curb perceived abuses of trademark law, or “trademark bullying.” The proposed legislation for Minnesota (discussed here) defined trademark bullying as:

“The practice of a trademark holder using litigation tactics in an attempt to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark holder.”

While people may have the best intentions to encourage small businesses and individuals not to back down from bullying tactics, it is difficult to craft legislation that only applies when it feels right. Any laws need to be written carefully because not only will David use them against David, but Goliath can use them against David, too.