Together with the Digital Media Law Project, we filed an amicus brief today in federal court in Massachusetts. We are urging the court to ensure that the Digital Millennium Copyright Act provides protection for victims of abusive takedown notices—specifically, that the DMCA requires copyright owners to consider fair use before sending takedowns.

The takedown procedure of the DMCA provides a quick, cheap, extrajudicial way to get speech removed from the internet. As we’ve written many, many times before, this makes it a tempting tool for those who wish to remove speech they happen to dislike. To prevent such abuse, Section 512(f) of the DMCA provides victims of wrongful takedowns with a remedy, allowing them to file a lawsuit for misrepresentation under the DMCA.

This latest Section 512(f) case out of Massachusetts has a curious history. It began as an online battle between two bloggers—doula Gina Crosley-Corcoran and OB/GYN Dr. Amy Tuteur—about the safety of home birth. After an exchange of critical posts, Crosley-Corcoran posted a photo of herself making a well-known, finger-related gesture to Tuteur and writing: “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 responded with a post of her own that included the photo with some commentary (the photo is now removed from this post)—a clear case of fair use.

Crosley-Corcoran then sent a DMCA takedown notice to the host of Tuteur’s blog, alleging copyright infringement of the finger photo. After Tuteur changed hosts, Crosley-Corcoran sent another takedown notice to the new host. According to Tuteur, this second notice was sent after Crosley-Corcoran’s attorney admitted that there was no valid copyright claim. And on her blog, Crosley-Corcoran wrote that she would be prepared to settle the matter if Tuteur would “agree to stop personally attacking me.” As others have also concluded, the chain of events suggests that Crosley-Corcoran was using the DMCA to silence a critic.

Tuteur responded by filing a federal lawsuit in Massachusetts asserting a DMCA Section 512(f) claim. On its own initiative, the court issued an order to show cause suggesting that it “seriously questions” whether Tuteur has stated a viable Section 512(f) claim. The core of the court’s concern is that the fair use is an affirmative defense—the judge questioned whether the DMCA requires the sender of a takedown notice to consider fair use.

This is an important question. If the DMCA did not require copyright owners to consider fair use, it would be an open invitation for private censorship. For example, an author could send a takedown notice to remove a critical book review based on just a few quoted words. Fortunately, other courts that have considered this issue have found that the DMCA does require consideration of fair use. For example, in Lenz v. Universal, where EFF represents the plaintiff, the court ruled that content owners must consider fair use before sending takedowns.

The case of Tuteur v. Crosley-Corcoran is not about the relative merits of these blogger’s views about childbirth. Rather, it is about the alleged misuse of the DMCA to silence a critic and the crucial legal issue of whether the DMCA requires senders of takedown notices to consider fair use. Today we urge the court to reach the right result and ensure that the DMCA protects free expression.

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