“Be fruitful and multiply . . . but not in those words”: How much good faith is required when giving birth to a DMCA takedown notice?

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

blog_image_8.5x11Section 512 of the Digital Millennium Copyright Act (DMCA) provides copyright owners with the ability to demand that Internet Service Providers (ISPs) remove unauthorized copies from the internet.  This can be a powerful tool. Risk-averse ISPs, unwilling to expose themselves to liability for copyright infringement, often comply with such notices without regard for their merit. Thus, even when a takedown notice is patently frivolous, the accused copyright infringer is often faced with a choice between curtailing her own speech or having her website shut down by an overcautious ISP.

Is there an effective way to prevent frivolous takedown notices? Section 512(c)(3)(v) requires that a takedown notice include: “a statement that the complaining party has a good faith belief” that infringement has occurred. But is the recitation of this statement alone a sufficient check against improper accusations? Judge Richard Stearns  of the District of Massachusetts will hear oral arguments next month in a matter regarding precisely these issues.

“This One’s For You, Dr. Amy”

Dr. Amy Tuteur and Gina Crosley-Corcoran are on opposite sides of an on-line debate over whether it is safe to give birth to your child at home without a doctor. Crosley-Corcoran, a “doula” and author of the Feminist Breeder website (and, as it happens, former bass player for the band Veruca Salt ), generally supports home birth. Dr. Tuteur, an obstetrician and author of the Skeptical OB website, generally opposes it.  Dr. Tuteur accuses Crosley-Corcoran of having insufficient experience and advocating potentially unsafe methods. Crosley-Corcoran accuses Dr. Tuteur of being a “terrorist” and “niche bully” who allegedly publishes heartless told-you-so attacks against women whose home births went wrong (e.g., “Yes, it is your fault that your baby died at homebirth”).

In December 2012, Dr. Tuteur posted an article critical of Crosley-Corcoran’s position.  Crosley-Corcoran responded with a post on the Feminist Breeder, which concluded with the statement: “I don’t want to leave you without something you can take back to you blog and obsess over, so here’s a picture of me . . .”  Accompanying this text was the above picture of Crosley-Corcoran, offering the single-finger salute that Woody Allen once paraphrased as “be fruitful and multiply.”  The caption read: “This one’s for you, Dr. Amy.

Dr. Tuteur, apparently wishing to get in the last word, copied the photo from the Feminist Breeder and reprinted it on the Skeptical OB, along with additional commentary.

Upon seeing her photo republished, Crosley-Corcoran gleefully announced to her readers that Dr. Tutueur had stolen the picture and “now owes me $750 (or $30,000, her choice).” Crosley-Corcoran hired an attorney and began sending takedown notices to Dr. Tuteur’s ISPs, alleging copyright infringement. Crosley-Corcoran’s later blog posts allegedly indicate that she was more interested in silencing Dr. Tuteur’s speech than in enforcing a legitimate copyright claim.  Crosley-Corcoran’s counsel allegedly admitted as much in a subsequent phone call.

Now, it’s pretty clear to anyone paying attention that Dr. Tuteur would probably have a slam dunk fair use defense if a copyright action were brought, and also a healthy implied license defense (after all, Crosley-Corcoran practically dared Dr. Tuteur to republish the photo on her blog).  However, Dr. Tuteur’s  overcautious ISPs (one of which was inaptly named “DaringHost”) weren’t interested in discussing legal theory and threatened to discontinue service unless she took down the photo.  So she took it down.

Dr. Amy Sues

In January 2013, Dr. Tuteur brought suit, alleging that Crosley-Corcoran violated Section 512(f), which provides that the copyright owner is liable if, in a takedown notice, she “knowingly materially misrepresents [] that material or activity is infringing.”  According to Dr. Tuteur, Crosley-Corcoran did not have a good faith belief that infringement had occurred (as required by Section 512(c)(3)(v)), and she actually knew or should have known that Dr. Tuteur had a “fair use” defense.

Crosley-Corcoran, a resident of Illinois, moved to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). But the Court had other ideas.  Rather than dive into a potentially complex jurisdictional issue, Judge Stearns made a beeline for the merits. The Court agreed with Dr. Tuteur that her republication of the photograph was most likely a fair use.  However, as the Court saw it, there could be no claim under Section 512(f) because Crosley-Corcoran (in her takedown notices) claimed to have had a subjective good faith belief that her copyright was being infringed. Judge Stearns ordered Dr. Tuteur to show cause why her complaint should not be dismissed on the merits.

The Positions of the Parties

The parties proceeded to brief the issue, in which briefing they were joined by amici the Electronic Frontier Foundation (EFF), Harvard’s Digital Media Law Project (DMLP) and the Motion Picture Association of America (MPAA).  At the heart of the debate is whether Section  512(f) provides a meaningful remedy for the victims of improper takedown notices.

Dr. Tuteur cites to Ninth Circuit case law and argues that, in order to make out a claim under Section  512(f), she need only allege that Crosley-Corcoran made an incorrect claim of infringement (incorrect because it was a fair use) and that she knew or should have known that the claim was incorrect. If a Section  512(f) claim could be defeated merely by the copyright owner’s rote recitation of subjective good faith, Dr. Tuteur argues, victims of improper takedown notices would in effect have no remedy whatsoever. The practical implications of Dr. Tuteur’s position could be that a copyright holder has an affirmative duty to consider whether there is a fair use defense or other defenses before issuing a takedown notice.  Amici EFF and DMLP, citing the legislative history of Section  512, support Dr. Tuteur’s position, and argue that relatively broader availability of the Section  512(f) remedy is necessary promote internet users’ “legitimate interests in not having material removed without recourse.”

Crosley-Corcoran, citing to a different body of Ninth Circuit case law, argues that the standard of “good faith” in issuing takedown notices is purely subjective and, since she attested to her own good faith and consulted with an attorney, she is essentially immune from suit. Moreover, she argues that there is no duty to conduct a “pre-takedown investigation” to consider potential defenses, and that any such obligation would be contrary to the DMCA’s intent to provide a “rapid response” to copyright infringement.  The MPAA’s brief  is styled as an amicus  “in support of neither party” (probably to distance itself from some of the defendant’s less civil pronouncements), but it basically supports Crosley-Corcoran’s position.  The MPAA warns that the adoption of  Dr. Tuteur’s position by the Court would make anti-piracy initiatives more difficult and costly.

The outcome could be significant for copyright owners and web content creators, at least within the First Circuit.  On the one hand, we don’t want it to be too easy for persons of ill will to remove speech they don’t like from the internet.  On the other hand, we don’t want copyright owners who issue legitimate takedown notices to be subject to reflexive retaliatory law suits under Section  512(f).  Oral arguments are scheduled for July 1, 2013. The DMLP has created a helpful website with most of the key documents and related links.


Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

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