Lawsuit update 4: the Electronic Frontier Foundation and the Harvard Law School Digital Media Project file to submit an amicus brief in support of my claim

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In my last update, I reported:

… [The judge] 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.

We submitted that reminder today and I am gratified to report that we are not the only ones who think that my case should proceed. The Electronic Frontier Foundation and the Digital Media Project of the Berkman Center for Internet & Society at Harvard Law School have submitted a motion for permission to file an amicus curiae (“friend of the court”) brief in support of my claim, asserting that “The Court’s ruling on this claim will have significance well beyond the parties in this case.” The amicus brief is attached to the motion.

Of note, the EFF is representing Stephanie Lenz in the leading DMCA case currently making its way through the courts, Lenz v. Universal Music Corp., 5:07-cv-03783 JF (N.D. Cal.).

As they explain:

On the facts alleged, it appears that this case involves exactly the kind of DMCA abuseSection 512(f) was meant to deter. This is not a case about the tone of debate in the parties’ blogs or about the merits of their respective views about childbirth. This is a case about defendant Crosley-Corcoran’s alleged use of the DMCA’s takedown procedure to silence a critic.

This is an important public policy issue:

… In the week of March 5, 2013, Google alone received over four million notices, a ten-fold increase over the previous year. Copyright Removal Requests, Google Transparency Report, https://www.google.com/transparencyreport/removals/copyright/. If even a small percentage of DMCA takedown notices are improper, then thousands of persons will have their lawful speech censored. Congress enacted Section 512(f) precisely to prevent such abuse and help compensate for the lack of prior judicial approval to protect the “end-users legitimate interests.”

They view the key argument as follows:

C. Dismissal of Section 512(f) claims based on fair uses at the pleading stage could open the floodgates to private censorship.

Dismissal of Tuteur’s claim, particularly at this stage, would send a dangerous signal to copyright owners and end users that copyright owners need not actually consider whether a given use is authorized by law before sending a takedown. As the Supreme Court has stated, fair use is a critical “First Amendment safeguard” that helps ensure “copyright’s limited monopolies [will remain] compatible with free speech principles.” Eldred v. Ashcroft, 537 U.S. 186, 219-20 (2003). Fair use is particularly important where, as here, an individual wants to respond to a critic. This is because writers—whether they wish to criticize, parody, or praise the work of another—need to quote the original to make their point effectively. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580 (1994).

If a copyright owner is not required to consider fair use when sending a DMCA takedown notice, the DMCA becomes an easy tool for censoring internet criticism: any person quoted by a critic could get the critic’s speech quickly removed from the Internet. For example, an author could cause the takedown of a negative book review simply on the basis of the quotation of a few words. Such a reading cannot be reconciled with either the text or the policy of Section 512,which was intended to facilitate the growth of the Internet as a platform for free speech.

You can find the reply brief that my lawyers submitted here:

https://dl.dropboxusercontent.com/u/27713670/Tuteur-20130501_Show_Cause_on_DMCA_violation_%26_jurisdiction_-_as_filed.pdf

The motion filed by the Electronic Frontier Foundation and the Digital Media Project of the Berkman Center for Internet & Society at Harvard Law School is here:

https://dl.dropboxusercontent.com/u/27713670/Tuteur-20130501_EFF%27s_Motion_for_Leave_to_file_Amicus_Brief.pdf

Addendum:

Gina’s response
https://dl.dropboxusercontent.com/u/27713670/Tuteur-20130501_Defendant%27s_Opposition_to_EFF%27s_Mtn_to_File_Amicus_Curiae_Brief.pdf

  • Felicitasz

    Thank you for these regular updates. I cheer on from the sides, and I especially appreciate that I can have information while the case is going on. This is a cultural education thing as well given that I have no idea of American law, and I seriously do hope that I will never have to unless I want to – I just have private and naive opinions about stuff and these updates give me a guide about what is what and how things can be interpreted and dealt with. Thanks again.

  • Bomb

    Pound that table, Gina.

  • Mary Herrington, RN, IBCLC

    This is wonderful news! I have been so busy with closing on a new home and packing to move that I rarely get to catch up on blog time. How nice to check in and see this development. Good for you, Dr Amy and keep up the great work !

  • Tired Momma

    Somebody bite off more than she can chew…

  • moto_librarian

    If I were Gina, I would be crapping my pants right now. The EFF and the Berkman Center are absolutely correct to be filing briefs in this case because the central issue IS related to the abuse of the DMCA filing. Gina doesn’t seem to grasp that this isn’t about what she and Dr. Amy disagree about – it’s about misusing a legal process to stifle someone’s speech. Thank you to the EFF and Harvard!

    • Squillo

      I’d be crapping my pants if only because it’s a pretty good signal that, should the judge dismiss, there will be an appeal, and the fine attorneys Amy has retained will receive (pro-bono?) assistance from a set of “legal Goliaths (in opposing counsel’s words) who have more than the usual expertise in this type of litigation.

  • anonymous

    What’s with Gina’s lawyer starting all her filings with some sort of quote?

    “Putting aside the legal soundness of this assertion….the proposed amici curiae brief does nothing more than argue the same points argued by plaintiff’s counsel”

    Really? Why not just write “please don’t allow this because it only helps to hammer home the fact that my client messed up and doesn’t really want to be held accountable.”

  • I applaud you taking on this issue and wish you every success….

  • Amy Tuteur, MD
    • Karen in SC

      Very strange read. Is it really an argument that you already have great attorneys so a “friend of the court” brief isn’t needed?

      • Amy Tuteur, MD

        Apparently.

        Even I know that amicus briefs are routinely filed (to the Supreme Court, for example) when the plaintiffs and defendants are represented by the best attorneys in the US.

        • KumquatWriter

          Her response reminded me of Claire Pike from The Babysitters Club books.

          “NOFE-air! NOFE-air!”

      • auntbea

        I mean, she has to respond somehow, right? And that’s pretty much the only thing that’s left.

      • Squillo

        Which ignores the other purpose of the amicus curiae: to inform the court on issues that may or may not be argued in the case but that the court should consider for their effects on society at large. That’s why it’s “friend of the court” rather than “friend of one party,” although an AC is usually helpful to one side rather than the other, as I understand it.

    • GuestB

      Doesn’t appear that anyone is over there high-fiving her on her Facebook page now…

      • Frequent Guest

        Yeah, that’s because she’s banned everyone.

  • Dr Kitty

    Good stuff.
    I was so disappointed that the judge was taking the “girls, girl, no need to overreact” line, instead of, rightly, treating this as a legitimate issue about free speech and censorship, as well as blatant abuse of DMCA to silence criticism.

    • Eddie

      Agreed. This is a awesome development, the EFF taking such an active interest in this case. That reminds me, it’s time I gave them a donation.

  • notahomebirthlactivist

    fabulous! I was beginning to worry that Gina was going to get away with her crap!

  • Esther

    Best of luck, Amy. I have long since despaired of true justice coming out of the legal system, but maybe this time, it will.

  • Squillo

    Good news. The EFF have done some excellent work in the name of defending people against censurious asshats.

    Of note, the EFF is also helping defend fightcopyrightrolls.com and dietrolldie.com against the now notorious Prenda Law firm. (And if you’re not following the Prenda saga, you’re missing out on some of the best entertainment on the internet.) So Ms. Croseley-Corcoran finds herself in… er… illustrious company.

    • Awesomemom

      Where can we catch up on this juicy tidbit of entertainment?

      • UNCDave

        If you’re looking for Prenda related stuff go to Popehat; Ken White has been crushing it with his coverage. Fair warning, you may lose several hours reading through all the material, and you might have facial bruising from all the face-palming you’re likely to do.

        • theNormalDistribution

          Thank you for taking four hours of my day away from me.

          • UNCDave

            YOU WERE WARNED!!!!

          • KarenJJ

            Oh good grief. My husband was also filling me in on Prenda. Unbelievable. Happy to hear the EFF are interested and lending support.

    • auntbea

      What? Where did they possibly find THREE lawyers this stupid?

      • Squillo

        Well, they got away with it for some time, so they weren’t that stupid at the start. Just evil and, in the end, cocky. Thankfully, they came up against some canny lawyers who got a federal judge interested. As my federal-attorney husband says, “Ruh-oh, Shaggy!”

    • Oh yes, the Prenda stuff. Arstechnica has a whole lot of great articles about that, if people want to find out more.

    • Amy Tuteur, MD
      • theNormalDistribution

        OMG nerdgasm on too many levels.

        • auntbea

          I just wonder how many law students in twenty years are going to read this case and wonder what the prime directive is. Maybe there will be a footnote in the text.

      • Squillo

        And it was beautiful. My federal-attorney husband’s jaw dropped when he read the ruling.

  • “This is a case about…alleged use of the DMCA’s takedown procedure to silence a critic.” I am glad to see that this issue is finally being given the serious attention it merit.

  • Susan

    That’s great!

  • Amy Tuteur, MD
  • staceyjw

    TFB may have her name down in history after all, but not for the reason she thought she would!

    • Captain Obvious

      I’m a busy guy with my family and practice, I can’t even imagine being in TFB shoes, er, waterbirth tub right now.

  • Sara

    LIKE!

  • suchende

    I was soooo hoping this would happen when I read the last update. Wonderful!

  • auntbea

    I was thinking someone should notify the EFF. Guess your lawyers are a little ahead of me.

    • Amy Tuteur, MD

      The EFF actually approached us. They had been following the case.

      • auntbea

        They must have blown their collective gasket at the order to show cause.

      • suchende

        I am not surprised but I can’t believe Abovethelaw didn’t pick it up. I assumed they would (even emailed them) which would tip off groups like EFF.

  • YAY Dr. Tuteur! thumbs up!