Tuteur v. Crosley-Corcoran [1]

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 [2], 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 [3] 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 [4] 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 [5] 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 [6] 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 [7] 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 [8] 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 [9], 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.