Possibly The First Serious 512(f) Ruling in D. Mass

Adam Holland, May 13, 2013

Abstract: A Massachusetts court is hearing a case triggered by a DMCA takedown notice in which the sender admitted that they new the recipient had a fair use claim.

Chilling Effects fans and those who follow takedown notice stories will recall the relatively recent brouhaha in which a NASCAR fan filmed a crash with his cellphone and posted it to YouTube, whereupon NASCAR asserted claim in the cellphone video and filed a DMCA takedown notice to get the video removed.
you can see the fan video in question >here, and a more revealing video of the accident, probably from the venue cameras, here.

Google pushed back and left the video up, and in short order NASCAR was backing down from its claims of copyright infringement, going to far as to say that the issue for them had in fact never been about copyright.

This prompted much criticism of what seemed like a knowing and blatant abuse of the DMCA process. Media guru Dan Gilmor, criticizing NASCAR's behavior, suggested (correctly, as it turns out) that nothing at all would come of it.
We here wondered, if this open admission that a DMCA notice had been sent when the sender knew, and later acknowledged, that it had nothing to do with copyright couldn't trigger 512(f), if there could be any 512(f) situation so egregious that the notice sender would suffer the (admittedly weak) associated penalties.

Well, it's looking as though just such a situation has arisen in Massachusetts, where a Boston OB/GYN, Dr. Amy Tuteur, has been in a rather acrimonious back-and-forth with an Illinois doula, Gina Crosley-Corcoran. ["C-C"]

TechDirt has
and our colleagues at the Digital Media Law Project, together with the EFF, have not only taken an interest, but have sought to file an amicus brief. Intriguingly, the defendants are opposing the brief on the grounds that their opponent's lawyers are too good. Go, DMLP!

You can dive into all the details at your leisure, but we here at Chilling Effects are keenly interested in this case because of what it portends for the DMCA notice and takedown process.
Here's the DMLP on the key elements from our perspective. [emphasis added]

"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 Crosley-Corcoran's attorney acknowledged that she did not have a valid copyright claim."
[because the reposting was a fair use]

So, this seems like an ironclad 512(f) claim, in that this is a clear abuse of the DMCA process, in that C-C sent the notice knowing that Tuteur's use of the photo was not an infringing one.

Recall that a fair use is not a defense to an infringement, but in fact not an infringement at all. "the fair use...is not an infringement...."

However, the court, sua sponte, raised the idea that a notice sender might not have to consider a recipient's fair uses when sending a notice.
[Arguably, no one does this anyway, but the idea of a precedent being set such that there's no need to do so is disturbing.]

It's so easy to remove content that the possibility of notice recipients' uses being fair ones being reason to leave content up is an already thin reed. Fair use is already complex, and many users don't attempt to rely on it because its determination, ultimately by a court, if challenged, is too expensive. Narrowing its use and scope is not the direction in which we want to go.

As the DMLP points out:
"the notice requirements of the DMCA do not require a copyright owner to merely claim use without permission; they require a copyright owner to state that the use "is not authorized by the copyright owner, its agent, or the law." [emphasis added] (17 U.S.C. § 512(c)(3)(A)(v).)
Similarly, Section 512(f) allows recovery against anyone who knowingly misrepresents "that material or activity is infringing," and as the Copyright Act and courts repeatedly note, "a fair use is not an infringement of copyright."

If the court ends up where it appears to be looking, 512(f) will be rendered meaningless, and there will be nothing at all holding back willful misuse of the DMCA's takedown process.

Keep an eye on this case!

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Chilling Effects Clearinghouse page printed from: https://www.chillingeffects.org/fairuse/weather.cgi?WeatherID=744