Midwife Who Knew Rival's Blog Post Isn't Infringing May Be Liable for DMCA Notice

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By Amy E. Bivins

Sept. 12 --A copyright holder who allegedly conceded that she knew a blogger's online post was not infringing when she sent the blogger's hosting company a Digital Millennium Copyright Act takedown notice might be liable for making a misrepresentation in a DMCA notice, the U.S. District Court for the District of Massachusetts held Sept. 10 (Tuteur v. Crosley-Corcoran, D. Mass., No. 1:13-cv-10159-RGS, 09/10/13).

Judge Richard G. Stearns denied the copyright holder's motion to dismiss. The blogger adequately alleged that the copyright holder knowingly and materially misrepresented that the blogger infringed the copyrighted photograph by re-posting it on her website, the court held.

An alleged conversation between the parties' attorneys formed the basis for the court's denial of the motion to dismiss. The blogger alleged that her attorney--her husband--had a conversation with the copyright holder's attorney in which the copyright holder's attorney conceded that they had no copyright claim against the plaintiff. The copyright holder's attorney, however, adamantly denied making that statement.

For purposes of a motion to dismiss, that alleged concession was sufficient to state a claim under Section 512(f) of the DMCA, 17 U.S.C. §512(f). If later proceedings reveal that the statement was inserted into the complaint to avoid dismissal, Rule 11 provides the appropriate remedies at the appropriate time, the court said.

The blogger is a former physician and the copyright holder is a midwife. The parties debate the safety of home birthing and had bitter exchanges about the topic on their websites. Following one such exchange, the blogger re-posted one of the copyright holder's photographs on her website.

The court also denied the copyright holder's personal jurisdiction-based motion to dismiss.

MPAA, EFF Debate Standard for Takedown Notices
Amici the Electronic Frontier Foundation and the Motion Picture Association of America debated the standard required for a copyright holder to send a DMCA notice in good faith.

The DMCA requires that a copyright holder attest to a good faith belief that material is infringing when sending a DMCA takedown notice. The statute imposes liability on any person who knowingly and materially misrepresents that material or activity is infringing, 17 U.S.C. §512(g)(3).

The copyright holder contended that she consulted two attorneys before sending the takedown notices. The first attorney helped the copyright holder draft the original cease-and-desist letter. The second attorney said that he considered--and rejected--the blogger's argument that her posting of the photo constituted fair use.

The copyright holder stated that she believed that the DMCA notice was “a completely legitimate, legal, and appropriate use of a DMCA takedown notice.”

The MPAA, arguing in support of the copyright holder, argued that liability under Section 512(f) should only attach upon proof that a copyright holder had an actual, subjective belief that he or she is making a material misrepresentation of infringement.

The EFF, supporting the blogger, contended that copyright holders must investigate any possibly applicable fair use or other affirmative defense before filing a DMCA notice.

In Rossi v. Motion Picture Association of America Inc., 391 F.3d 1000 (9th Cir. 2004) , the court held that the good faith requirement is a subjective. Under the subjective standard, liability only attaches if the copyright holder's notification is a knowing misrepresentation.

But Lenz v. Universal Music Corp., 2008 BL 190494, 572 F. Supp.2d 1150 (N.D. Cal. 2008) , held that the copyright holder must first evaluate whether the material makes fair use of a copyright in order to send a DMCA notice with a good faith belief that material is infringing.

This court found Rossi more persuasive, noting that it is an appellate decision and that the Lenz court has since retreated from its earlier ruling.

With those cases in mind, the court held that the blogger could proceed against the copyright holder under the DMCA.

The blogger was represented by Russel Beck and Stephen D. Riden, Beck Reed Riden LLP, Boston. The copyright holder was represented by Evan M. Fray-Witzer and Thomas M. Ciampa, Ciampa Fray-Witzer LLP, Boston.

Christopher T. Bavitz, Harvard Law School Berkman Center for Internet & Society, Cambridge, Mass., Corynne McSherry, Electronic Frontier Foundation, represented the Electronic Frontier Foundation and the Digital Media Law Project. The Motion Picture Association of America was represented by Jonathan H. Blavin, Munger Tollesk & Olsen LLP, Los Angeles, and Daniel J. Cloherty, Collera LLP, Boston.


To contact the reporter on this story: Amy E. Bivins in Washington at abivins@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com

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