Lawsuit update 3 – disappointed!

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The judge issued a preliminary ruling today, focusing not on whether the court has jurisdiction over Gina, but instead questioning the merits of the case. Interestingly, he said that I would probably win the case if Gina had sued me for copyright violation, since the image probably meets the fair use exception and Gina may have also given me an implied license to use it. But, he questioned whether I am entitled to sue Gina for DMCA abuse and tortious interference with Bluehost over one DMCA notice.

It is unclear why the judge made no mention of the DMCA notices sent to my second host or the fact that Gina was soliciting others to file DMCA notices with the express purposes of pushing my site off the web. We will be reminding the judge of this in our response and expect that it will then be clear that I am entitled to sue Gina for what she did.

You can read the ruling here:

https://dl.dropboxusercontent.com/u/27713670/Tuteur%20judges%20order%204-10-13.pdf

  • Amy Tuteur, MD
    • DT35

      So is Mr. Goldman correct? Are you going to object and then appeal?

  • Kalacirya

    This doesn’t surprise me at all, I wasn’t really expecting this lawsuit to stick. She may win this case, but it should be becoming clear that she’d in no way win a copyright infringement case. And that she, and other homebirth mothers that post things publicly online, are not free from quotation and criticism by nature of intellectual property laws.

    I think Gina is not particularly intelligent, but she isn’t completely stupid. She blogged about being excited about some kind of plan to stop Dr. Amy once and for all. When she put up the google survey thing inquiring about possible copyright infrigements, it seems like she was seeking to organize some kind of legal takedown of the SOB. And she reacted with such glee when she realized that the hosts would take down the site for DMCA notices. I think it was all likely in bad faith, but there’s no solid proof of such. And she made sure to be vague about everything to the general public.

    I think the funniest part is that if the judge dismisses this case, Gina is going to laud it as a victory. A victory when what she really wanted was to sue and win against Dr. Amy, or better yet shut Dr. Amy down, and all she managed to do was not lose a suit against herself. Better yet, is that some of her followers STILL think that this suit is some kind of countersuit to Gina’s original suit, which she never filed. They’re still under the narrative that Gina is controlling this situation.

    • Squillo

      A Pyrrhic victory indeed. Remind me again who lost a significant portion of her audience? Moreover, if Amy reposts the “Finger Picture”, there is now a plausible claim that Ms. Crosley-Corcoran is aware that it is likely fair use (thanks, Judge Sterns), so any more takedown notices would likely meet the very criterion for the misrepresentation allegation Judge Sterns says is lacking in Amy’s current case.

      And as you say, I’d be surprised if Amy hears a peep out of any of the other folks who’ve made noise about copyright infringement.

      But it does nothing to mitigate the abuses made possible by the DMCA, which is a shame.

  • theNormalDistribution

    That ruling seemed to be very sympathetic to Gina and missing a lot of facts… I am really surprised that the judge just accepted that Gina genuinely thought her claim was valid. Because she said so. Apparently ignorance is a defense now? Or is this an example of the “letter of the law” sort of rulings that I’ve heard are common in the US? I would be very surprised to see a ruling like this from a Canadian judge. Any lawyers want to share their opinion about the case?

    Obviously not the best source, but I was just reading the Wikipedia page on the DMCA listing various court cases, and one of them said:

    “In August 2008, U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected “fair use” of the copyrighted material.”

    It would be interesting to read the details of that case and what the ruling actually was.

    • Squillo

      The ruling in Lenz v. Universal is interesting in that it denies the motion for summary judgement based on (among other things) the fact that Universal argued a semantic point of law (a “non-authorized” use vs. a “permitted” use) and that making a good faith determination of Fair Use prior to filing for takedown was burdensome. The judge in that case wasn’t completely buying either argument, and he decided to err on the side of the plaintiff (the individual rather than the copyright holder). He notes specifically that: “Although the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment, Lenz’s allegations are sufficient at the pleading stage.” In other words, the judge is willing to let a jury decide if Universal acted in bad faith. Not so, Judge Sterns, apparently.

      The issues Amy argues in her suit are somewhat different, although one of Lenz’s arguments about bad-faith (the “Prince Policy”) would seem applicable because it touches on Universal’s true motives for filing the takedowns. I’ll be interested to see what comes out of that prong of the argument.

      It’s also worth noting that the EFF is providing counsel to Lenz, who I doubt would have the resources to pursue this without their help.

    • Squillo

      Yes and no. He may have accepted at face value Ms. Crosley-Corcoran’s assertion that she acted in good faith, but he was also quite careful to note that Amy’s use of the “Finger Photo” was likely fair use.

      My reading of it is that he’s saying, “You get this one, but don’t file another notice about this.”

      • mom2nat

        The problem is Gina seems to think that it means Dr. Amy could have used fair use as a defense in a copyright case, but not that she’d win so I think she would likely continue to send take down notices if Dr. Amy did post the photo again.

        • Squillo

          Maybe, but she would have to be very, very stupid to do that. Amy would then presumably file another suit, and most lawyers would run like hell from trying to defend it after another judge has already essentially ripped the “good-faith” defense from under her feet.

  • Yesacsection

    Very disappointing.

    At least, in all this, the defendant put her poor behavior behind a firewall and did stop filing the silencing take down notices. I’m not a judge, but in my opinion, that shows plenty of guilt and knowledge that the behavior is, if not wrong before the law, certainly asinine. I especially appreciate the response the lawsuit brought out of Gina. If anyone was in doubt about whether or not she was a feminist, exposure to her response to the lawsuit should have cleared that up. (ie:Name calling and mentioning she was a poor student and a mom)

    I’m glad your blog is still out for all of us to see and that Gina was unsuccessful. Your blog was a welcome respite when I had a c-section and met idiots who told me I should have taken hypnobirthing because it would have saved me from an emergency c-section and”failure”. And, I am glad you are still pursuing the lawsuit. It is important to anyone who uses the internet.

    Thank you Dr. Amy.

  • Squillo

    It is a disappointment in that it doesn’t do what many free-speech advocates were hoping it might: challenge the ability of “big-fish” players to suppress the speech of small players using the flaws inherent in the DMCA. The difference in this case is that Dr. Tuteur had equal or superior means to the alleged abuser, and so had equal access to the courts. Many free-speech advocates have been hoping for a good test case and observers were hoping a win here would send a message to the individuals and companies that habitually use the DMCA to shut down sites they don’t like. That is the truly unfortunate thing if the ruling stands.

    I suspect Dr. Amy won’t be receiving lots of frivolous DMCA notices in future, but lots of others will continue to be plagued with them.

  • Tara

    Hi Dr Tuteur,
    so sorry to read about this. I’m following from afar and wishing you all the best. As I’m in a different legal system, it would be helpful if anyone here could outline for me (or others like me) what the next steps are. This is just preliminary, but what now? And when?
    Again, sending you lots of good wishes and hoping for the best!

  • Susan

    There are some things about that that bother me that I don’t think have been discussed yet. First, the judge appears to be saying that Gina’s lawyer was trying to amicably resolve the issue prior to Dr. Amy filing the lawsuit. Didn’t Gina get a lawyer only after Dr. Amy filed the lawsuit? If Dr. Amy hadn’t filed the lawsuit I think Gina would never have stopped trying to interfere with the blog.
    And that’s to me at the heart of this. Gina was trying to interfere with Dr. Amy’s right to free speech. I think it’s reasonable to believe that when Gina posted that picture she knew what was going to happen; of course Dr. Amy would post it on her blog as Gina offered it to her to do. So if it was a reasonable belief that she would post the picture I think it’s likely Gina already knew she was going to claim copyright infringement and “get” Dr. Amy. Look at how Gina crowed about her success and her plans to silence Dr. Amy. It was the lawsuit that took Gina by suprise, nothing else.
    It’s just nuts to say that Dr. Amy’s lawsuit was an unreasonable lawsuit given those circumstances.

    • Susan

      Another statement by the judge is that Gina had a good faith belief that Dr. Amy had violated copyright law. I don’t think Gina had a good faith belief for the reasons I went into before. The other very valid point is that there were lots of takedown notices, not just one. Also Gina was attempting to get other people to issue them too. Gina’s goal was to silence Dr. Amy not to protect her middle finger image. That should have been obvious to the judge and I don’t think that’s a good faith belief.
      (ps…I used to just type Amy and it’s annoying now that Gina says “dr” that I feel like just using her first name is disrespectful. I call most docs by their first names! but she earned the Dr. Amy and I am going to use it!)

    • Squillo

      No, she had a (different) lawyer who offered to settle the copyright case GCC never filed before Amy filed her suit, saying, in essence, stop writing about me or I’ll sue you for copyright violation.

      I don’t necessarily agree that Gina knew or should have known that she had no copyright case; fair use is notoriously in the eyes of the individual judge. In that, I agree with Judge Sterns.

      What I find disappointing is that he chose to ignore the numerous statements Ms. Crosley-Corcoran made as to her intentions in filing the DMCA notices and ruled solely on the prior point. Whether or not this is appropriate under the law, I’m not equipped to judge, but it seems to leave Amy and other like her with no legal recourse to stop others from filing notice after notice without ever actually submitting the alleged copyright violation to legal scrutiny, regardless of its merits. The judge has made this explicit in his comment that, in his eyes, Amy’s use of the “Finger Photo” was likely Fair Use. But now, she faces the choice of removing it or running the risk of receiving continued takedown notices and potential removal of her blog. With regard to the photo… meh. But it’s a much, much bigger problem when we’re talking about substantive content and the ability of any individual to publish critical or other commentary that makes fair use of others’ intellectual property.

      • Susan

        You’re right. My memory of all the events leading up to this needed refreshing.

  • jcohen

    I’m sorry! I’m an attorney and have briefed PJ motions in federal court a lot — sometimes I feel like personal jurisdiction jurisprudence hasn’t really caught up with the real world and the way the internet works. But, I know that can be frustrating for a plaintiff.

  • LovleAnjel

    Someone’s clerk did a bad job. Probably did this the day before the deadline the judge set, at 11pm.

    • suchende

      I was surprised to find it was the work of a career clerk and not a 23 yr old phoning it in. Up to now I have always found the legal reasoning of career clerks to be excellent.

      • LovleAnjel

        It is excellent, but that doesn’t stop procrastination. A family member retired from it a few years ago, and they were notorious for waiting until a few hours before the deadline to write and submit.

  • Very disappointing. :-/

  • I think I would find it infuriating rather than disappointing. Gina was wrong, but she can merrily issue DCMA notices out of spite anytime she feels like it? Presumably, Gina will present this as a triumph, missing the point as usual.

    It also confirms a suspicion of mine – that the bringing of “frivolous” law suits is not quite as simple a slam dunk as it may appear. Juries may be sentimental and easily swayed, but lawyers and judges are a different matter, and the reality doesn’t have much to do with popular fantasies of “justice” – or common sense either, sometimes.

    One does wonder if the judge would have been quite so dismissive if this was two male bloggers disagreeing about something “important” – like, say, computer gaming or politics.

    • KarenJJ

      “One does wonder if the judge would have been quite so dismissive if this was two male bloggers disagreeing about something “important” – like, say, computer gaming or politics.”

      Yes, that crossed my mind too.

    • Squillo

      Gina was wrong, but she can merrily issue DCMA notices out of spite anytime she feels like it?

      Sort of. She has to allege a “good faith belief” that Amy’s infringing. She’ll have a harder time with that now with regard to the “Finger Photo” now that Judge Sterns has issued his view that it was likely fair use.

      But this ruling does nothing to dissuade her or others from doing the same thing with regard to other things, here or elsewhere.

  • Bomb

    So if I say I believe a website is using my image inappropriately I can just start filing takedown notices everyday until their website is taken down, regardless of whether they are doing so or not, and there is nothing they can do in response no matter how often their service is interrupted? Makes sense to me.

    • suchende

      Yeah, DCMA sucks. Which to me is the most baffling element of this ruling: if a slam dunk fair use case isn’t an example of abusive takedown notices, nothing is.

      • KarenJJ

        Yes. It’s not just people here on Skeptical Ob that are interested in this suit.

    • The Bofa on the Sofa

      I think the judge is saying that the problem is actually with the service providers, who are quick to shut someone down just because someone files a DCMA notice. They overreacted.

      • Squillo

        I don’t see that. He does note: 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.

        This could be read as a veiled criticism of the DMCA (or not), but I don’t see it as a criticism of the service providers, who lose their protection from liability if they fail to act on a notice. If I were a web host, I’m not sure I’d be willing to risk it either.

  • MikoT

    Just a few incorrect or misleading things I noticed:

    is a former physician and critic of midwifery
    Read: former physician / OB and critic of lay midwifery.

    Corcoran, who lives in Illinois, is a midwife (doula)
    A doula is not a midwife

    The photo’s caption informed the reader that Crosley-Corcoran was giving Tuteur “something else to go back to her blog and obsess about.”

    This is a misquote which changes the meaning . The actual quote is:
    “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.”

    These efforts, however, came to naught when Tuteur preemptively filed this lawsuit
    It came to naught because Gina’s terms were ridiculous, not because Dr Amy was hellbent on legal action as this implies.
    And after three DMCA notices, I’m not sure this lawsuit could be called “preemptive” either.

    • suchende

      I guess the clerk didn’t get to GCC’s Wikipedia footnote explaining what a doula is.

    • KarenJJ

      Great summary Miko.

    • Squillo

      And after three DMCA notices, I’m not sure this lawsuit could be called “preemptive” either.

      Exactly. And the “amicable” terms Judge Sterns alludes to included a willing suspension of Amy’s right to free speech. Not terms I’d agree to either, if I had the means to fight a threatened copyright suit.

    • guest

      It drives me nuts when people use quote marks around a paraphrase. If you are going to paraphrase, then paraphrase. If you want to use quote marks, then every single word between them must be an exact copy of the thing you are quoting. You see crap like this all the time in blogs and comments, but this is an official court document! For Pete’s sake!

  • guest

    he ruled that way because you are still wasting people’s time.

    • suchende

      My goodness, did you even read the opinion?

    • Whose time?

      • KarenJJ

        Gina’s.

        • I know. She could be off trying to scam WIC for organic baby food or something, right?

    • Kalacirya

      What does this even mean?

      • auntbea

        Just look at the all the time guest wasted reading this blog post and writing a comment!

    • theNormalDistribution

      So’s your face.

  • guest

    he ruled that way because this lawsuit was a waste of everyone’s time. seriously.

    • Petanque

      In what way?

    • I don’t have a creative name

      You are SO right. Dr. Amy should’ve just sat back and let Gina continue to file illegal DMCA notice after illegal DMCA notice, and said “Free speech? Oh I don’t need that! You go right ahead!”. Dr. Amy totally should’ve ignored Gina’s thinly veiled threats about all the “plans” she has for Dr. Amy. The best way to combat a bully who is trying to ruin your business is to utterly ignore it so that you don’t waste anyone’s time. Genius you are.

    • Squillo

      So, if you used parts of this blog to criticize it on your own blog, and Amy filed DMCA takedown notices alleging copyright infringement, you’d have no recourse unless she deigned to actually file a suit. All she’d have to do is exactly what Ms. Crosley-Corcoran did: file the notice, wait the 14 days, and if you put it up again (according to your legal rights), she could file again. And again. And again. And your host is going to keep insisting you remove it or take your site down because your host has neither the time nor the inclination to investigate claims, nor any desire to end up on the wrong side of a copyright suit. So you’d just take down the alleged infringing material, even if you have a good faith belief that it falls under fair use. Because you don’t get your day in court to say so unless Amy decides to file her copyright suit. Unless, of course, you had the means to take her to court and challenge her under § 512(c)(3), just as Amy did here.

      Yeah, definitely a waste of everyone’s time to object to that.

      • Karen in SC

        Under the scenario you’ve outlined, I believe that there are plenty of blogs that take excerpts from this blog in order to criticize. I know two wrongs don’t make a right, but ….my, it would be tempting.

        In fact, TFB may have done so. Since it’s been a long time since I read anything on her blog, I can’t remember, but it seems plausible.

    • guest

      For what it’s worth, in my past work history I was in a position to see nearly everything filed, first in a county courthouse in one state, then in a federal courthouse in a different state. In each place, for more than two years. This case may not rank with the most important constitutional questions that ever were filed, but you can hardly call it trivial. But this dispute and its solution truly may not matter to you. In that case, it is only a waste of your time. Stop reading.