The Digital Millennium Copyright Act remains a potent weapon with which to silence online critics. That’s the takeaway from the disappointing ruling last month in a closely watched Massachusetts case, Tuteur v. Crosley-Corcoran. The court ruled that to send a DMCA takedown notice, a copyright holder need only “affirm a good faith belief that the copyrighted material is being used without her or her agent’s permission.” This decision, which seemingly ignores key statutory language, weakens the DMCA’s already anemic anti-abuse provisions and will encourage precisely the type of strategic behavior alleged to have occurred in this case.
The provision at issue is Section 512(f), which provides relief to victims of improper DMCA takedown notices. The DMCA allows copyright owners to notify Internet-based hosting services of infringing material on their systems and request that the material be removed. But before doing so, the copyright owner must affirm that he or she has a good faith belief that the alleged infringing use “is not authorized by the copyright owner, its agent, or the law.” If the copyright owner materially misrepresents that the material is infringing, Section 512(f) allows the victim to sue for damages.
This case revolves around a war of words between Gina Crosley-Corcoran, a doula who blogs about home birth, and Amy Tuteur, an OB/GYN whose blog criticized the practice. After an angry online exchange, Crosley-Corcoran posted a picture of herself “flipping off” the camera with her middle finger and stating “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.” Tuteur took the bait, re-posting and commenting on the picture on her blog.
Crosley-Corcoran then sent takedown notices to Tuteur’s hosting services, which removed not only the photo, but Tuteur’s entire blog. The two continued to squabble, with Crosley-Corcoran offering at one point to settle the dispute if Tuteur would “stop personally attacking” her. The complaint strongly suggests that Crosley-Corcoran was using the DMCA not to protect any valid copyright interest, but merely as a tool to silence a critic. Unfortunately for her, Tuteur’s husband was a litigation partner at a prestigious Boston law firm. Instead of backing down, Tuteur filed a lawsuit under Section 512(f).
The key question for the court was whether Crosley-Corcoran had to consider fair use before filing a takedown notice. Few would dispute that Tuteur’s reposting of the picture with commentary is fair use, particularly in the context of their ongoing blog dispute. Tuteur argued that Crosley-Corcoran should have considered fair use before sending the takedown notice. As Electronic Frontier Foundation and Digital Media Law Project noted in an amicus brief, the DMCA should not silence online speech anytime the speaker uses unlicensed material. Rather, as noted above, the copyright owner must have a “good faith belief” that the use is not authorized by “the copyright owner, its agent, or the law.” The amicus brief explains that “[a]n allegation that a copyright owner issued a takedown notice knowing that the use in question was in fact authorized by law, and/or that she had not formed a good faith belief to the contrary, is, therefore, sufficient to state a claim.”
But the court disagreed. Because fair use is an affirmative defense, the defendant holds the burden of proof. To require a plaintiff to investigate an affirmative defense before sending a takedown notice would be costly and cumbersome, which is at odds with Congress’s goal of an expeditious takedown procedure. As a result, the court held that to survive a 512(f) claim, Crosley-Corcoran need only affirm a subjective belief that that the material is used without her permission.
The court’s concerns are understandable. As Lee Gesmer discusses, Congress enacted the DMCA before the explosive growth of file sharing technology and YouTube. Gesmer notes that Google receives over four million takedown notices weekly, many of which are generated by a largely automated identification-and-removal process. For studios and other holders of large copyright portfolios, it would be time-consuming and costly to evaluate the circumstances of each post. And if the speaker has a valid fair use defense, the DMCA makes it fairly easy to request the material be reposted (though many choose not to do so, as it may invite a copyright lawsuit from a studio or record label).
But the ruling seems contrary to the statute’s language. The statute requires the copyright owner to affirm that the material is not authorized by the user “or the law.” That additional clause suggests the owner must make at least some inquiry into whether some provision of the law authorizes the use even if it is nonpermissive. In most circumstances, courts presume that parties know the law; ignorance of the law is no excuse. If imposing this objective burden creates unacceptable transaction costs on copyright holders, then it is up to Congress, not the court, to edit the statute accordingly. By requiring Crosley-Corcoran merely affirm that the use was nonpermissive, the ruling reads the phrase “or the law” out of the statute.
The Tuteur ruling also may be unconstitutional. Copyright scholar Neil Netanel’s most recent article explains that the Supreme Court’s recent decision in Golan v. Holder highlights the constitutional significance of the fair use doctrine. Copyright protection inherently limits expression, meaning that it must be cabined to prevent it from unduly trampling First Amendment values. The Court explained that fair use is one of copyright’s most important “First Amendment accommodations,” without which copyright law may be unconstitutional. Netanel argues that under Golan, the DMCA and other copyright-like protections that do not feature fair use as prominently may violate the First Amendment.
Golan’s significance is highlighted in cases like this one, where the DMCA is used not as a shield to protect intellectual property, but as a sword to silence one’s critics. This misuse of copyright protection seems the quintessential case in which 512(f) should apply. If Tuteur cannot meet the standards for sanctioning copyright misuse, it’s unclear whether any DMCA victim can.
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