DMCA

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.

Jurisdiction: 

Subject Area: 

Content Type: 

Tuteur v. Crosley-Corcoran

Threat Type: 

Lawsuit

Date: 

01/25/2013

Party Receiving Legal Threat: 

Amy Tuteur, M.D.

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts

Case Number: 

13-cv-10159

Legal Counsel: 

Russell Beck and Stephen D. Riden (Beck Reed Riden LLP)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On January 25, 2013, Dr. Amy Tuteur, an obstetrician-gynecologist residing in Massachusetts, filed suit in federal court against Gina Crosley-Corcoran, a resident of Illinois, based upon a dispute arising out of blogs written by each individual: The Skeptical OB, by Tuteur, and The Feminist Breeder, by Crosley-Corcoran. The case is centered on DMCA takedown notices issued by Crosley-Corcoran to the hosts of Tuteur's blog.

According to the Complaint, Tuteur and Crosley-Corcoran engaged in a heated debate through the medium of their respective blogs on the dangers and merits of home births. This debate escalated to a point at which Crosley-Corcoran allegedly published a post entitled "This One's For You, 'Dr.' Amy," which included a photograph of Crosley-Corcoran 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 by publishing the photo of Crosley-Corcoran on her own website in a post entitled "Pounding the table," in which Tuteur argued that the photo was an "outstanding example of table pounding" and accusing Crosley-Corcoran of being afraid to answer questions posed by Tuteur.

Crosley-Corcoran then allegedly responded with a series of efforts to compel the removal of the photograph from Tuteur's website, including a cease-and-desist letter and two Digital Millennium Copyright Act takedown notices directed to Tuteur's website hosts. Tuteur claimed that these takedown notices resulted in service interruptions and her website hosts terminating her contract with them. Tuteur also alleged that Crosley-Corcoran acted in bad faith in sending the takedown notices with the motive of interfering with the publication of critical statements on Tuteur's blog, claiming that Crosley-Corcoran was subjectively aware or should have been aware that Tuteur's use of the photograph was either (1) authorized by the text with which Crosley-Corcoran originally presented the photo, or (2) a "self-evident non-infringing fair use under 17 U.S.C. § 107."

Based on these allegations, Tuteur's complaint asserts two claims: (1) a claim under 17 U.S.C. § 512(f) for knowing and material misrepresentations in Digital Millennium Copyright Act takedown notices; and (2) a claim for tortious interference with Tuteur's contractual relationships with her website hosts. Tuteur sought damages, attorneys' fees, and an injunction barring Crosley-Corcoran and/or her agents from pursuing any copyright claim related to the "finger" photograph.

On March 5, 2013, Crosley-Corcoran moved to dismiss the complaint for lack of personal jurisdiction, alleging that she did not have sufficient contacts with Massachusetts to justify filing suit against her there, and arguing that neither the sending of a cease-and-desist letter into Massachusetts nor allegations of harm suffered in Massachusetts were sufficient.

In an opposition filed on April 5, 2013, Tuteur asserted that Crosley-Corcoran knew that Tuteur lived in Massachusetts and had intentionally targeted her allegedly wrongful conduct at Tuteur's activities there. Tuteur argued that Crosley-Corcoran's failure to file an actual  copyright lawsuit over the photo was evidence that the takedown notices were intended to interfere with Tuteur rather than defend Crosley-Corcoran's copyrights. Accordingly, Tuteur argued that Crosley-Corcoran's purpose to cause harmful effects in Massachusetts, together with harm actually caused there, was sufficient for the federal court in Massachusetts to exercise personal jurisdiction over her. Alternatively, Tuteur requested the right to take limited discovery on the jurisdictional issue.

On April 10, 2013, the district court issued an order on the motion to dismiss. While the court acknowledged that Tuteur's claims were premised on Crosley-Corcoran's takedown notices, it characterized the core issue in the jurisdictional dispute as to whether "ownership of an active, interactive, or passive website maintained by a service provider based outside of Massachusetts but which Massachusetts residents can access over the Internet satisfies the purposeful availment test." The court also questioned whether Tuteur could succeed in demonstrating "conduct uniquely or expressly aimed at the forum state," i.e., Massachusetts.

Ultimately, however, the court opined that the case might be more properly resolved on its merits than the "thorny issue of internet-based personal jurisdiction," because the "court seriously question[ed] whether Tuteur ha[d] stated a viable cause of action against Crosley-Corcoran":

The takedown notice at issue appears to conform to the letter of the requirements of section 512(c)(3) [of] the DMCA. In it, Crosley-Corcoran states accurately that her likeness has been copied without her express authorization and published by Tuteur without permission on her SkepticalOB website. ... It is true that if the tables were reversed, and this was a lawsuit brought by Crosley-Corcoran against Tuteur for copyright infringement, Tuteur would have a plausible, and even dispositive fair use affirmative defense ..., or as she suggests at one point, a defense of implied license ... . But 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. Seen in this light, there is no material misrepresentation by Crosley-Corcoran of infringement, as a viable cause of action under section 512(f)(1) would require.

Tuteur’s tortious interference claim would also seem vulnerable on similar grounds. Here, there would seem nothing improper about the purpose of Crosley-Corcoran’s takedown notice, which was to stop what she believed was an infringement of her copyrighted likeness, while the means that she chose, sending a the notice to the service provider, was one explicitly authorized by the statute.

Accordingly, the court ordered Tuteur to show cause with 21 days why the complaint should not be dismissed on its merits and/or jurisdictional grounds.

Update:

May 1, 2013: Tuteur filed a memorandum of law with the court in response to the court's order to show cause. In the memorandum, Tuteur asserted that a Section 512(f) claim is available when a party filing a DMCA takedown notice misrepresents that the targeted content is infringing, and that misrepresentations of infringement are independent of whether there are misrepresentations as to ownership or authorization. Accordingly, Tuteur argued, Crosley-Corcoran's takedown notices gave rise to a Section 512(f) claim because she allegedly knew that she had no viable claim of infringement at the time the notices were sent. Tuteur specifically argued that her use of the "finger photo" was protected as a fair use. On the jurisdictional issue, Tuteur argued that (1) Crosley-Corcoran's sending of takedown notices directed at a blog that Crosley-Corcoran knew was operated in Massachusetts sufficed to subject her to specific jurisdiction in Massachusetts, and (2) Crosley-Corcoran's operation of her own website, which had a widespread presence and specific contacts with Massachusetts users, was sufficient for the court to exercise general jurisdiction over her in Massachusetts.

On the same day, the Electronic Frontier Foundation and the Digital Media Law Project (disclosure: the DMLP hosts this database) filed an amicus brief in the case, urging the court to recognize (1) that a Section 512(f) claim can be based on misrepresentations as to infringment alone, and (2) that a party sending a takedown notice must consider questions of fair use before they may form a good faith belief that content is infringing.

May 9, 2013: Crosley-Corcoran filed a response to Tuteur's May 1 memorandum, arguing that the district court's analysis in its order to show cause was correct, and more specifically that: (1) Tuteur had failed to plead that the takedown notices caused the removal of her blog, thus failing to plead damages as required for a Section 512(f) claim; (2) Section 512(f) requires proof of a lack of subjective good faith, such that evidence that the defendant honestly but unreasonably relied upon a meritless interpretation of the law is not sufficient; and (3) Tuteur's tortious interference claim was preempted by Section 512(f).

May 10, 2013: The Motion Picture Association of America filed an amicus brief, in which it argued that "[l]iability under § 512(f) arises only where the copyright owner has actual, subjective knowledge that it is making a material misrepresentation that the use of the copyrighted work is infringing." Thus, the MPAA argued, liability under Section 512(f) could not be premised on a failure to consider fair use of the work allegedly infringed or reliance upon an unreasonable interpretation of the law. In particular, the MPAA asserted that because fair use is characterized as an affirmative defense in the First Circuit, it should not be the copyright holder's burden to evaluate whether the fair use doctrine would make a particular use "authorized by law." The MPAA further argued that imposing the burden upon copyright holders to conduct a complex fair use analysis before asserting their rights under the Digital Millennium Copyright Act would be unjust and frustrate the purposes of the statute.

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Does the DMCA's Safe Harbor Apply to Pre-1972 Sound Recordings?

Some of the most commercially successful and popular music of all time – including the entire catalog of The Beatles – is subject to a degree of uncertainty under current copyright law in the United States due to an anomaly in the federal copyright framework with respect to older sound recordings.

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Viacom v. YouTube: The Second Circuit Punts on 'Right and Ability to Control'

I'm not all that worried about YouTube's legal fate as such (I'm pretty sure Google can afford plenty of lawyers), but when the Second Circuit speaks on the DMCA, I listen.

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Associated Press v. Meltwater News

Threat Type: 

Lawsuit

Date: 

02/14/2012

Party Receiving Legal Threat: 

Meltwater News

Type of Party: 

Large Organization

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

U.S. District Court, Southern District of New York

Case Number: 

1:12-cv-01087-DLC

Legal Counsel: 

Wilson Sonsini Goodrich & Rosati

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On February 14, 2012, the Associated Press (AP) filed a lawsuit in federal court against Meltwater News, Inc. AP alleges multiple counts of copyright infringment, as well as hot news misappropriation and 17 U.S.C. § 1202 (b) removal/alteration of copyright information.

AP's complaint focuses on Meltwater News Service,  which Meltwater describes as an "online media monitoring" service. AP alleges that Meltwater News infringes AP's rights by storing complete copies of AP stories, circulating "substantial verbatim excerpts" of those stories in newsletters and email reports, allowing Meltwater subscribers to access, save, edit, and distribute the full text of articles, and preparing unauthorized translations of the articles.

The complaint draws a distinction between Meltwater News and other news aggregators like Google News: Meltwater charges subscribers a "substantial annual fee," and unlike other services that "drive traffic to legitimately licensed sites," Meltwater News's users archive the AP articles directly on Meltwater's site. Thus, AP alleges that Meltwater News is a "directly competing product [built] on the backs of news organizations like the AP."

Thus, AP alleges:

  • Direct copyright infringement based on Meltwater's use of AP content;
  • contributory copyright infringement based on Meltwater's customers' ability to copy AP content;
  • vicarious copyright infringment based on Meltwater's profiting from, and ability to control, customers' infringement;
  • hot news misappropriation based on Meltwater's competition with AP for subscribers; and
  • 17 U.S.C. § 1202 (b) violations based on Meltwater's customers' ability to remove or edit credit lines and copyright notices included in AP articles.

AP also seeks a declaratory judgment that Meltwater News constitutes infringment of AP's copyrights.

AP included with its complaint exhibits documenting the allegedly-infringed content and some of Meltwater's promotional materials describing Meltwater News.

Update:

On April 6, 2012, Meltwater answered, denying AP's claims of copyright infringement, hot news misappropriation, and removal of copyright management information. The answer raised a series of defenses, including copyright misuse, fair use, substantial non-infringing use doctrine, implied license, First Amendment defense, DMCA safe harbor, and immunity from a "hot news" claim through copyright preemption and under § 230 of the Communications Decency Act. Meltwater also raised a series of counterclaims, including a declaration of non-infringement and safe-harbor under the DMCA, libel (based on AP's press release following the complaint), and tortious interference with business relations.

 On May 15, 2012, AP answered Meltwater's counterclaims. AP asserted that Meltwater does not qualify for DMCA safe-harbor protection due to failure to register an agent before the complaint was filed, that the tortious interference claim is duplicative of the libel claim, and that all statements made in the press release were protected under the First Amendment and Article 1 § 8 of the New York State Constitution, as well as a "fair report" under § 74 of the New York Civil Rights Law.

Content Type: 

Subject Area: 

CMLP Notes: 

2/16/2012: Sharkey created, sent to queue

6/22/2012: AFS edited, added updates

Jurisdiction: 

United States v. Megaupload Limited

Threat Type: 

Criminal Charge

Date: 

01/05/2012

Party Receiving Legal Threat: 

Megaupload Limited, Vestor Limited, Kim Dotcom, Finn Batato, Julius Bencko, Sven Echternach, Mathias Ortmann, Andrus Nomm, and Bram van der Kolk

Type of Party: 

Government

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of Virginia

Legal Counsel: 

Ira Rothkin (counsel for defendant Megaupload Limited), Paul Davison Q.C. (counsel for defendant Dotcom), Guyon Foley, Barrister (counsel for defendant Dotcom)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On January 5, 2012, a grand jury convened in the United States District Court for the Eastern District of Virginia issued an indictment against Megaupload Limited, its affiliate Vestor Limited, and principals Kim Dotcom (a resident of New Zealand and Hong Kong, and a citizen of Finland and Germany), Finn Batato (a citizen of Germany), Julius Bencko (a citizen of Slovakia), Sven Echternach (a citizen of Germany), Mathias Ortmann (a citizen of Germany and a resident of Hong Kong), Adrus Nomm (a citizen of Estonia), and Bram van der Kolk (a citizen of the Netherlands and New Zealand).

The indictment alleges that the organization and its principals were engaged in a systematic conspiracy to commit and profit from copyright infringement, through operation of the megaupload.com domain name and its affiliates, including megavideo.com.  According to the indictment, before its seizure, Megaupload operated as a "cyberlocker" or file hosting service website, where users were able to upload content to Megaupload servers and receive a unique URL which identified where the file could be downloaded later. Megaupload did not charge users for the basic service, and offered a premium subscription that featured faster bandwidth and fewer limitations on accessing the content stored. The website also featured an "Uploader Rewards" program, which gave monetary compensation for users that uploaded especially popular files to the system. Specific allegations are made stating that the defendants directly copied material without permission, helped others commit copyright infringement, received a direct financial benefit from infringement, and induced others to commit copyright infringement.

The indictment lists five criminal counts, all related to the underlying allegation of criminal copyright infringement. In addition to criminal copyright infringement (17 U.S.C. §506 and 18 U.S.C. § 2319), the indictment alleges conspiracy to commit racketeering (18 U.S.C. § 1962) by being engaged in an enterprise to commit criminal copyright infringement, conspiracy to commit money laundering (18 U.S.C. § 1956) by transferring money that constituted the proceeds of criminal copyright infringement, and aiding and abetting criminal copyright infringement (18 U.S.C. § 2). The indictment alleges that Megaupload did not designate a copyright agent, as is required under the  "safe harbor" of the Digital Millennium Copyright Act (17 U.S.C. § 512), and that Megaupload would deliberately avoid taking down an allegedly infringing file based on a infringement notice, opting instead to only delete the link to the file on which the complaint was based.

According to the New Zealand Herald, Dotcom, Batato, van der Kolk, and Ortmann were arrested on January 19, 2012. On January 27, 2012, the Department of Justice filed a letter informing the defendants and the court that the DOJ had conducted a search of Megaupload service providers Carpathia Hosting, Inc. and Cogent Communications, Inc. in Virginia and the District of Columbia. The DOJ had copied the files from servers licensed to Megaupload, and informed the court that the hosting companies may begin deleting the contents of those servers beginning on February 2nd. On February 1, 2012, the Electronic Frontier Foundation filed a letter to the parties and the court on behalf of an undisclosed client, asking the court to preserve the material stored by Megaupload at the direction of the website's users, noting that many individuals had relied on the service for innocent, noninfringing storage of content. According to a Twitter post made by Megaupload Limited's attorney, the hosting services have agreed to temporarily preserve the servers until an agreement can be reached on how to preserve the material stored at the direction of innocent users.

The extradition process is currently underway for defendants arrested in New Zealand. According to BBC News, Mr. Dotcom was denied bail based on flight risk concerns.

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CMLP Notes: 

1/25 AFS began skeleto, filled out 2/6.

Threat Source: 

Court Filings
RSS

Newport Television, LLC v. Free Press

Threat Type: 

Correspondence

Date: 

07/01/2011

Party Receiving Legal Threat: 

Free Press

Type of Party: 

Media Company

Type of Party: 

Organization

Legal Counsel: 

Corie Wright (Policy Counsel for Free Press)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Non-profit media reform organization Free Press recently created a brief video related to its "Change the Channels" campaign, a campaign to resist what it calls the "covert consolidation" of media companies. The video included a critique of Jacksonville, Florida stations WAWS-TV (a Fox affiliate) and WTEV-TV (a CBS affiliate), who share a common website. The video was posted on YouTube.

Newport Television, LLC, a television station holding company that is the owner of WAWS-TV and the operator of WTEV-TV, sent Free Press a cease-and-desist letter on July 1, 2011, demanding that Free Press remove all WAWS and WTEV content from the video, including the stations' logos. Newport alleges that Free Press's use of the  logos constitutes copyright infringement. The letter also suggests that use of the stations' logos was false and misleading. Newport further requested that YouTube remove the Free Press video under the notice-and-takedown procedures of the Digital Millennium Copyright Act. YouTube complied with this takedown request on July 7.

On July 8 Free Press responded to Newport's letter, rejecting Newport's copyright claim and its suggestion that any of the material in the video was false or misleading. Free Press further asserted that the DMCA takedown filed by Newport was without merit, constituting tortious interference with contract and a unlawful misrepresentation under the DMCA. Free Press also asserts that they have filed a DMCA counter-notice with YouTube, demanding that the video be reinstated.

The issue is still pending.

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The Persian Version: Why Support for ACTA Undermines U.S. Promotion of Internet Freedom

"To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it . . ." –Definition of Doublethink from 1984, George Orwell

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iStockphoto v. Awkward Stock Photos

Threat Type: 

Correspondence

Date: 

01/01/2010

Party Receiving Legal Threat: 

Mark Hauge; Tumblr

Type of Party: 

Individual

Type of Party: 

Individual
Intermediary

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Material Removed

Description: 

In late January 2010, iStockphoto sent a DMCA takedown notice to Tumblr, requesting that it to take down photos hosted on Awkward Stock Photos, a Tumblr blog of funny stock photo images found by users on the websites of various online stock photo purveyors.

According to Ars Technica, the notice demanded not only that iStockphotos' photos be taken down, but that all photos on the site be removed. Mark Hauge, who runs the site, told Ars that, before the takedown, he "only use[d] watermarked photos that [he] downloaded and re-uploaded to Tumblr (so [he] wasn't hotlinking) and then linked them back to their original source."

As a result of the takedown notice, Hauge no longer posts photos directly to his blog. Instead, he provides text links back to the source, with each entry reading the same: "Awkward Stock Photo." The effect is certainly not the same as it once was, but still very funny if you're willing to follow the links.

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Google's MP3 Blog Removals: Bloggers, It's Up to You

That feeling—as if a couple dozen voices cried out in terror and were suddenly silenced. If you felt some similar disturbance in the force last week, you might be aware that Google pulled the plug on several MP3 blogs it had previously hosted on its Blogspot service. On Wednesday, The Daily Swarm reported that several prominent bloggers had found their blogs yanked from Google's service.

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EMI/Vimeo Lawsuit Leaves Lip-Dubbers Speechless

A group of friends gathered after work a few years ago to record what may be now the most popular performance of Harvey Danger's "Flagpole Sitta." In a video that has since been viewed more than 2 million times on Vimeo, the 30 or so friends took turns lip-syncing, dancing and then ultimately falling to the floor as a group at the son

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Fox News DMCA-Bombs News1News on YouTube

Like many former newspaper employees, I hate the 24-hour "news" networks.  Be it Fox News, MSNBC, or CNN, I think they're just across-the-board awful.  The only time I'll pay any attention to them is in the midst of some event that demands real-time attention, say a presidential election or a terrorist attack (and even then, I may just switch to BBC coverage instead).  Other than in those situations, the news channels are just echo chambers for the dreck spewed by your Becks, O'Rei

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Polo Ralph Lauren v. Boing Boing

Date: 

10/02/2009

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Boing Boing; Priority Colo; Photoshop Disasters; Blogger

Type of Party: 

Large Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed

Description: 

In October 2009, Ralph Lauren sent a DMCA takedown notice to Boing Boing's webhost, Priority Colo, alleging that Boing Boing's posting of a Ralph Lauren advertisement violated its copyright. The Ralph Lauren advertisement featured a photograph of an improbably skinny model that appeared to have been photoshopped, and Xeni Jardin's post on Boing Boing reproduced the advertisement with a critical caption: "Dude, her head's bigger than her pelvis." Priority Colo and Boing Boing refused to remove the post, citing fair use.

The advertisement originally came to Jardin's attention via another blog, Photoshop Disasters. Photoshop Disasters published the advertisement with its own critical caption: "Make her head bigger than her pelvis! Do it!" Ralph Lauren also sent a DMCA takedown notice to Blogger, Photoshop Disasters' blog host, which removed the image.  (The original post is still available through Google's cache.)  It is not clear whether Photoshop Disasters submitted a counter-notification and whether the post will be restored.

After a great deal of media attention stemming from the takedown notices, Ralph Lauren acknowledged responsibility for photoshopping the image in a statement saying, "[f]or over 42 years we have built a brand based on quality and integrity. After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman's body."

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CMLP Notes: 

-mw reviewing 10/12

Priority: 

1-High

Jurisdiction: 

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