Moments ago I filed a lawsuit against Gina Crosley-Corcoran in Federal Court in Massachusetts that includes claims that Gina unlawfully sent false notices (called “takedown notices”) under the Digital Millenium Copyright Act (DMCA) and for tortious interference with my contracts with webhosts.
I did not make this decision lightly. A lawsuit is a serious matter, is extremely expensive, and no one can predict what will ultimately happen over the months or even years that a lawsuit can require. I regretfully came to the decision that it was necessary for several reasons: Gina’s various declarations that made clear to me that her real intentions had nothing to do with some supposed copyright and everything to do with “taking down” my site and interfering with my right to free speech, Gina’s recruitment of others to send what would almost certainly be frivolous DMCA notices alleging copyright violation, and the apparent hounding of my webhosts by Gina and/or her followers.
The statute that Gina relied on in sending her takedown notices (the DMCA) recognizes that it is easy to file frivolous notices. For that reason, the statute includes the following language:
Any person who knowingly materially misrepresents under this section —
(1) that material or activity is infringing …
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer … who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing …
In practice, courts have awarded as much as $100,000 plus attorney’s fees for filing misrepresentations under the DMCA act.
The thrust of my legal complaint is this:
As a threshold matter, there is no infringement because Dr. Amy only posted the Finger Photograph after Defendant Crosley-Corcoran publicly and expressly granted Dr. Amy permission to do the same…
On information and belief, Defendant Crosley-Corcoran had actual subjective knowledge of The Skeptical OB’s treatment of the Finger Photograph and that it did not infringe any copyrights on the dates Defendant Crosley-Corcoran sent Bluehost.com and DaringHost the takedown notices regarding the Finger Photograph. With this knowledge, Defendant Crosley-Corcoran acted in bad faith when she sent the takedown notices, knowingly and materially misrepresenting that she had concluded that The Skeptical OB was infringing. In this regard, Defendant Crosley-Corcoran’s public expressions of support on Facebook and elsewhere for The Skeptical OB’s recent service disruptions reveal her lack of bona fides as well as her true intentions with respect to The Skeptical OB.
I have sued only Gina. I have absolutely no desire to sue anyone else who may have submitted a frivolous DMCA complaint or has given Gina authority to file one on her behalf. However, I will avail myself of any remedies the law accords me, should I deem it necessary.
It is highly likely that I will have to move my site to yet another host. As I have said before, The Skeptical OB will be here next week, next month and next year. Nevertheless, having to move hosts again — thanks to Gina’s malicious attacks — is a burden neither I, nor my readers, should have to undergo.
Make no mistake, however, there has never been any chance that The Skeptical OB would disappear. There may continue to be service disruptions until the matter is sorted out, but my writing will continue to appear in the marketplace of ideas that is the Web. Homebirth increases the risk of neonatal death, and apparently there is no limit to what homebirth advocates will do in an effort to suppress that vital truth, in the process denying women the opportunity to make medical decisions after informing themselves of ALL the risks.
I am deeply grateful for the expressions of support, both public and private, that I have been receiving. I am truly moved and encouraged by your words.