The DMLP Joins EFF in an Amicus Brief Addressing DMCA Misrepresentations and Critical Speech

Earlier today the Digital Media Law Project, through our counsel at the Harvard Law School Cyberlaw Clinic, joined a brief filed by the Electronic Frontier Foundation in the United States District Court for the District of Massachusetts case Tuteur v. Crosley-Corcoran. The case concerns the Digital Millennium Copyright Act's "notice and takedown" procedures, and whether a party who sends a takedown request knowing that the target of the takedown has a valid fair use defense can be liable for such a misrepresentation. (You can read EFF's post about the filing here and download our brief here.)

As regular readers of our blog are aware, the DMCA, by immunizing online service providers from liability, incentivizes these services to implement a system whereby owners of content who discover copyright infringement by a service's users can file a notice with the service. The service will then expeditiously remove the allegedly infringing content and notify the user of the removal. The material will stay offline unless the website user files a counter notification stating that the user believes the material was incorrectly removed. After that point, the service provider has a window of no earlier than 10 and no later than 14 business days to restore the content.

This is a potent and unique remedy in online content liability: only in UGC-based copyright claims do we allow a private party to take down another private party's content without any judicial oversight, and force online services to wait weeks before restoring access the content in question. It is sadly unsurprising to learn that this private power to take down content has a history of abuse. We have seen many cases where people have improperly asserted a DMCA takedown in an effort to censor critical speech, including Diebold trying to remove company emails that showed a lack of faith in their e-voting systems, Ralph Lauren trying to remove website posts highly critical of a cover of their catalogue, a real estate company removing a critical website hosted by a third party, and radio host Michael Savage removing criticism of his prior remarks. (This common tactic is why the work of the organization Chilling Effects is so important.) Many of these cases arise when a critic uses expressive material created by the target of criticism to substantiate or illustrate their critique – a classic example of a "fair use."

Because it is so easy to take down content and it takes so long for content to come back up once it's taken down, Congress provides a vital remedy for takedown misrepresentations under the DMCA, at 17 U.S.C. § 512(f). Section 512(f) allows a party who had content removed based on a knowing misrepresentation that the material was infringing to recover damages and attorney's fees that flow from the improper takedown.

A classic example of such a misrepresentation can be found in the facts that are alleged in the Tuteur v. Crosley-Corcoran case itself. Here, according to the complaint in the case, Dr. Amy Tuteur, a Massachusetts OB/GYN, got into a dispute with Gina Crosley-Corcoran, an Illinois doula, over the merits of home birthing. The dispute lead to Crosley-Corcoran posting a photograph of herself on her blog extending her middle finger, with the accompanying comment, "I don't want to leave you without something you can take back to your blog and obsess over, so here's a picture of me, sitting at my dining room table[.]" Tuteur responded on her blog by posting the photo, arguing that it was an "outstanding example of table pounding" and accusing Crosley-Corcoran of being afraid to answer questions posed by Tuteur.

At this point, Crosley-Corcoran began threatening Tuteur with a copyright infringement lawsuit, and sent two DMCA takedown notices to the services hosting Tuteur's blog. According to the complaint, the second notice was sent after an alleged conversation between parties wherein Cros