Angry Bloggers, Hostile Courts and False DMCA Notices

Personal squabbles often times get out of hand with people saying and doing things that they don’t really mean. However, such personal disputes rarely become litigious and, when they do, they almost never drag in such powerhouses as the Motion Picture Association of America (MPAA) and the Electronic Frontier Foundation (EFF).

However, that’s exactly what’s happened to two bloggers who have had their personal dispute shape up to become one of the most important cases involving the Digital Millennium Copyright Act (DMCA) notice and takedown provisions and the issue of fair use online.

But at this time, it’s unclear if the case will be heard in any meaningful way or if it will be dismissed out of hand. Either way though, the the case is getting more and more attention from various groups, including copyright holders that use the DMCA to protect their works.

After all, the outcome of the case could play a big role in determining what the responsibilities of a DMCA filer are and, equally important, what repercussions there are for filing a false DMCA notice.

Background of the Case

Though I’ll do my best to quickly recap the case so far, those who want more detail should check out the Digital Media Law Project’s excellent recap here.

The case centers around two bloggers, Gina Crosley-Corcoran and Dr. Amy Tuteur. Crosley-Corcoran, who lives in Illinois, runs a blog advocating for midwifery and home births. Dr. Tuteur, who lives in Massachusets, is an OB GYN and opposes home birthing.

The two began to argue online about their respective positions and what is described as a “heated debate” began to form. At one point in the argument Crosley-Corcoran posted a picture of herself “flipping off” Dr. Tuteur in a post entitled, “This One’s For You, ‘Dr.’ Amy.” Dr. Teuter then reposted the image to her site as a means of calling out Crosley-Corcoran’s behavior.

But then Crosley-Corcoran began to take action and try to get the photo removed, first with a cease and desist letter and then with two DMCA takedown notices. According to the complaint, these notices resulted in interruptions to her site and with at least one of her hosts dropping her account.

This, in turn, prompted Dr. Tuteur to file a lawsuit against Crosley-Corcoran under two separate claims:

1. False DMCA Takedown Notice: As per 17 U.S.C. § 512(f), which covers knowingly making misrepresentations when filing a DMCA notice.
2. Tortious Interference: Claiming that Crosley-Corcoran interfered with her contracts with her web hosts.

When the case was first filed, Crosley-Corcoran only raised questions of jurisdiction. Dr. Tuteur filed the case in Massachusetts and Crosley-Corcoran claims that the jurisdiction is improoper as she has no ties there. However, Dr. Tuteur claimed that by filing the (allegedly false) DMCA takedown notices against her she engaged in action directed at the state.

However, the judge is yet to rule on that issue and, instead, ruled against Dr. Tuteur on grounds that she did not have a viable § 512(f) claim. The reason being that, even though Dr. Tuteur likely has good fair use and implied license arguments, that it’s still possible for Crosley-Corcoran to have had a good faith belief that the material was infringing and that is all that is required of a DMCA notice.

In short, even though the use of the photo was likely not infringing, since Crosley-Corcoran believed it was, the notices were likely valid and not open to a false notice claim. As such, the judge moved to dismiss the entire case, even though it was not the issue before the court.

Dr. Tuteur has objected to that decision and, last week, she was in court arguing her case. However, she was joined by the EFF and the MPAA, both of who filed briefs in the case and gave arguments as well. Crosley-Corcoran did not appear and has not responded to the case other than the jurisdictional issues.

Clearly, Dr. Tuteur has an uphill battle in this case. If she can prove she has even a possible § 512(f) claim and if she can beat back the jurisdiction issues, only then will she get a chance to prove her claims in the courtroom she wants.

But regardless of what the judge rules with Dr. Tuteur’s objection, an appeal seems likely (1st Circuit) and that could set the stage for a major appellate court ruling on an issue that has been a hot-button issue for DMCA filers everywhere.

Related Cases

When it comes to false or questions DMCA takedown notices, the courts generally have not been kind to those filing complaints.

In one 2004 case, Rossi v. MPAA, the 9th Circuit Court of Appeals held that a § 512(f) claim required subjective bad faith, meaning that the DMCA filer had to know that the claim was false and not merely be lazy or mistaken. This made making false DMCA claims exceptionally difficult as one had to prove that the claim was not merely false, but the the filer knew it was false.

The Lenz v. Universal case, which centers around the famous “Dancing Baby” video on YouTube, has only compounded this issue. As the case heads for trial, Lenz faces an uphill battle to prove that Universal was willfully blind with its DMCA notice and, to matters worse, only stands to collect partial attorneys’ fees, namely the pre-lawsuit legal fees, and nominal damages for for the time lost dealing with the notice and getting the video restored.

In short, not nearly enough to justify the 6-years of litigation that the case has gone through.

There have been some cases in which section § 512(f) claims were successful. The most notable was the OPG v. Diebold case (PDF), which centered around the publication and subsequent DMCA filings of archives of emails indicating flaws with Diebold voting machines. The court in that case issued a summary judgment in favor of the plaintiffs. saying Diebbold knowingly made misrepresentations when filing its DMCA notice, and the company agreed to pay $125,000 in damages.

However, the Diebold ruling came several months before the Rossi appeal ruling and, since Rossi, it has been incredibly difficult for those seeking damages under § 512(f) to make any progress.

This is continuing in Dr. Tuteur’s case, as she is having a difficult time even getting the matter in court.

Why the Tuteur Case is Important

For some time, the rhetoric around § 512(f) has been about how it has been made useless and defanged. For the most part, that’s true.

It has become virtually impossible to make a viable claim under the law and even more difficult to receive damages that would justify a lawsuit. Dr. Tuteur’s case is an attempt to knock some of that back.

In many ways, despite how bleak the case appears, it probably is the best chance to do so. It’s in a district far away from Rossi and Lenz (literally on the other side of the country) and can best set the stage for a circuit split and a possible Supreme Court appeal.

However, a clearly skeptical judge isn’t making that easier.

Still, in all of these cases the issue at play is fairly straightforward: What responsibilities does a DMCA filer have to ensure that their notices are valid and at what point does a false notice become grounds for damages, in particular meaningful damages?

If DMCA filers have no practical obligation to ensure their notices are valid, then there is nothing stopping flagrant abuses of the law. Tighten it too much and any mistake or disagreement over fair use can result in a successful laws, making the filing of any DMCA notices, no matter how seemingly valid, incredibly risky and impractical.

The courts have, almost universally, pushed the law toward the former, granting copyright holders more and more protection from lawsuits over their bad notices. Dr. Tuteur’s lawsuit is an attempt to push against that and could either represent a significant turning point or a veritable nail in the coffin for § 512(f) protections, going even farther than Rossi if it holds up.

What This Means for You

If you file DMCA takedown notices, nothing should change for you regardless of how this ruling goes. You should always be working to ensure that your notices are compliant with the law, that you weigh potential defenses, such as fair use, and you ensure that the source your complaint is a copyright one, not a defamation, trademark or other issue (even if copyright might also apply).

In short, if you’re acting appropriately with your takedowns, nothing will likely change.

The fear is that a case like this could put so much burden on a DMCA filer a simple mistake, no matter how quickly corrected or how much in good faith it was, could lead to damages. However, that does not seem likely from this case both due to the extreme nature of the dispute itself and the prior case law.

Still, this is an important one to keep an eye on. Even if it doesn’t impact you directly, it is going to impact the climate with which DMCA notices are filed and that can make things more or less difficult for you.

In that regard, what happens next affects all DMCA filers, no matter how legitimate.

Bottom Line

Copyright holders often complain that “Red Flag” DMCA liability, a provision of the law where hosts are so willfully blind to infringement that they are liable even without receiving a DMCA notice, has been legally whittled to meaninglessness.

That, for the most part is true, but it’s not the only legal protection that’s been seriously limited by court opinions over the years. The protection against false DMCA notices has suffered as well, perhaps even worse than red flag DMCA liability.

If we are to revisit copyright law and redraft major portions of it, it’s likely that the DMCA would also be looked at and, if it is, almost certainly the case law would be under the microscope, including how it has impacted the implementation of the law.

To that end, an evaluation of § 512(f) would likely be one of the first things on any todo list.