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 Crosley-Corcoran's attorney acknowledged that she did not have a valid copyright claim. After responding to the DMCA takedowns Tuteur filed a lawsuit against Crosley-Corcoran, asserting a violation of Section 512(f) for her alleged misrepresentation. Crosley-Corcoran responded by filing a motion to dismiss for lack of personal jurisdiction.
In considering the motion to dismiss, the court by its own volition raised the possibility that Tuteur may not have a valid 512(f) claim, because, according to the court's order, "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 . . . that the copyrighted material is being used without her . . . permission." The court ordered Tuteur to file a brief showing why her claims should not be dismissed for this reason.
The DMLP and EFF appeared as amici curiae at this stage to show why this interpretation is not a correct reading of the statute, frustrates Congress's intent to create an effective remedy for abuse of DMCA takedown notices, and goes against the opinions of the courts that have considered the issue (most notably, the cases of Lenz v. Universal Music and OPG v. Diebold). As the DMLP and EFF argue, 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." (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."
To bar misrepresentation claims even when a party knows that another's use of their material is fair would immunize all copyright owners who use the DMCA to silence critics who use some piece of the owner's media as part of the criticism. Copyright was never intended to be that sweeping, and Congress did not intend to be so punitive against Internet users as to frustrate and censor their speech beyond the normal boundaries of copyright. By ensuring that copyright owners are not allowed to knowingly ignore fair use concerns before forcing the removal of content for weeks, courts will help ensure that the DMCA does not become a tool of private censorship.
For more, please feel free to read our brief. Our thanks is due once again to Chris Bavitz and the HLS Cyberlaw Clinic, for their invaluable assistance in drafting and submitting this brief, and to Daniel Nazer at EFF for inviting us to join with EFF in addressing this critical issue.
Andy Sellars is a Staff Attorney at the Digital Media Law Project, and the Dunham First Amendment Fellow at the Berkman Center for Internet and Society.