September 11, 2013 8:29am PT by Eriq Gardner
How the MPAA Came Out Ahead in a Birthing-Method Bloggers War
The Motion Picture Association of America and the Electronic Frontier Foundation recently injected themselves into a vicious battle between two bloggers engaged in a debate about birthing methods.
While that might sound a bit atypical, there was a larger copyright issue at stake in a lawsuit brought earlier this year by Dr. Amy Tuteur, a critic of home birthing and the author of The Sketical OB blog, against Gina Crosley-Corcoran, a doula and proponent of natural birth for the blog TheFeministBreeder.
On Tuesday, a federal judge in Massachusetts issued a ruling that represents a victory for the MPAA's view that Congress didn't intend the Digital Millennium Copyright Act to require rights-holders to consider "fair use" before sending a takedown notice to remove a copyrighted work from the Internet.
As U.S. District Judge Richard Stearns describes what happened, after a bitter online exchange with Tuteur late last year, "Crosley-Corcoran posted a photograph of herself on her blog in a graphic hand pose (digitus impudicus) underscored with a caption informing readers that she was giving Tuteur 'something else to go back to her blog and obsess about.'"
Tuteur "took the bait" -- the photograph -- and put it on her own blog.
What followed was Crosley-Corcoran's takedown notice to Tuteur's web server, and when Tuteur switched her blog's ISP to restore the photo online, Tuteur's new webhost received another takedown notice. Of course, attorneys got involved, and eventually Tuteur filed a lawsuit that alleged her birthing blogger adversary made a misrepresentation of infringing activity under the DMCA and committed tortious interference with the relationship she enjoyed with her ISP. The plaintiff believed she had a fair use right to the photo in question.
That became fodder for amicus briefs from the MPAA, which supported Crosley-Corcoran, and the EFF, which supported Tuteur by pointing to a victory it once had in a case involving Universal Music's takedown of a a 29-second video clip of a toddler dancing to the 1984 Prince hit "Let's Go Crazy." After another ruling in that case in January, it's now on appeal.
The dispute between Tuteur and Crosley-Corcoran represented another opportunity in another district for a judge to weigh in on the sensitive digital topic of what requirements, if any, are necessary before rights-holders cause material to be removed via a takedown notice. The law imposes liability on those who "knowingly and materially misrepresents" in a DMCA takedown that "material or activity is infringing."
The EFF and other digital rights activists believe this means that fair use must be considered before any notice is sent, but the MPAA submits that "fair use serves to excuse a use that otherwise is infringing, not to create an affirmative right of use."
In his ruling (read here in full) that rejects the defendant's motion to dismiss, Judge Stearns says the MPAA has made a "persuasive point."
The judge's full conclusion is that "in enacting the DMCA, Congress did not require that a notice-giver verify that he or she had explored an alleged infringer’s possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agent’s permission. There is a reason for this. To have required more would have put the takedown procedure at odds with Congress’s express intent of creating an 'expeditious,' 'rapid response' to 'potential infringement' on the Internet."
The judge adds that "undoubtedly abuses will occur," but that there is a remedy (subsequent lawsuits for proven misrepresentations), and that "if experience ultimately proves that the remedy is weighted too heavily in favor of copyright owners at the expense of those who seek to make 'fair use' of another’s intellectual property, the resetting of the balance is for Congress and not a court to strike."