Key Legal Fight Shaping Up Over The Legality Of DMCA Abuses

You may remember that, back in January, we wrote about a blog fight between two women with very different views on childbirth, which then descended into a ridiculous copyright fight. I won't rehash all of the details, but the short version was that as a part of this fight, Gina Crosley-Corcoran posted a photo of herself giving the middle finger, and in posting it she told her rival, Dr. Amy Tuteur, it was "something you can take back to your blog and obsess over." Tuteur reposted the photo to her own blog, along with a blog post about Crosley-Corcoran. Crosley-Corcoran then yelled copyright infringement, at which point Tuteur's husband (a lawyer) explained to Crosley-Corcoran's lawyer what fair use meant (and also what an implied license is). And then... DMCA takedown notices started flying, leading Tuteur to change her web host twice. Furthermore, Crosley-Corcoran bragged about using the DMCA takedowns to silence Tuteur and get her blog taken down -- and (according to Tuteur's lawyer) Crosley-Corcoran's own lawyer admitted that she had no legitimate copyright claim. As we noted in our post, if there ever were a case to explore the punishment for violating the DMCA, this seemed like a good one. The key to this, of course, is 512(f) of the DMCA, which says that if you make a material misrepresentation in a DMCA takedown, you can be liable for damages, including costs and attorney's fees. However, at the same time, we noted why it's almost impossible to get someone punished for a bogus DMCA takedown. Still... the evidence on this case seemed so extreme, with Crosley-Corcoran more or less telling the world that she was abusing the DMCA specifically to silence Tuteur, we thought it actually had a chance. But then, a month ago, the judge in the district court in Massachusetts made a bizarre ruling rejecting the 512(f) claim in such a way that suggested no 512(f) claim would likely ever survive. It was bizarre in a few different ways. As Eric Goldman noted in his discussion of the ruling, the court was only supposed to be looking at a separate issue, involving the jurisdiction of the court over the case, but simply chose to go ahead and effectively rule on the key parts of the case, even though neither party had briefed the key issues. Among other things, the court focuses just on the first DMCA notice, and not the subsequent ones or the blatant statements of plans to keep using the DMCA to keep Tuteur's entire blog offline. Goldman calls it "the most bizarre Article III analysis I've seen" because even though the court says that Tuteur has a plausible fair use and implied license claim, that doesn't matter, because the court argues that the DMCA filer doesn't need to pay attention to that:

there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission

That's not actually what the law says. And it's not actually what other courts that have ruled on this issue have said. At the very least, the court recognizing that no briefs had been filed on the subject, gave Tuteur 21 days to respond. She did so with a long and detailed filing that reminds the court that this isn't about just that one DMCA filing, but a lot more. And, also, highlighting (a) that the DMCA isn't limited to just cases where things are posted without permission and (b) the other cases have said that a filer needs to take fair use into account. As her filing notes:

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. A victim – who did nothing unlawful and whose acts were authorized by the Copyright Act – would be left without recourse and without a voice

On the same day, the EFF along with Harvard's Digital Media Law Project also filed an amicus brief explaining why the court is simply wrong about the DMCA abuse clause. After listing out four different cases that came to a different conclusion than the judge in this case, it notes:

The DMCA requires the copyright owner issuin