May 23, 2013 | 69 Comments

Lawsuit update #7: We’re going to court

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The judge has granted us a hearing on the Motion to Dismiss for Lack of Jurisdiction and the substantive issue of the DMCA take-down notices! It’s due to take place in late June.

Author:Amy Tuteur, MD

View all posts by Amy Tuteur, MD →
  • Amy Tuteur, MD

    A law firm analyzes the case (although the name sounds similar, this is not my husband’s firm). It’s worth checking out just for the graphic created to accompany the piece:

    http://www.trademarkandcopyrightlawblog.com/2013/06/be-fruitful-and-multiply-but-not-in-those-words-how-much-good-faith-is-required-when-giving-birth-to-a-dmca-takedown-notice-2/

    The Digital Media Law Project has created a section of its website devoted to the case.

    http://www.dmlp.org/threats/tuteur-v-crosley-corcoran

    • Karen in SC

      Both those summaries are missing a key element – that in more than one court document, GCC calls Dr. Tuteur a bully and numerous other insults.

    • KarenJJ

      “doula” and Dr Amy.

      The first summary is hilarious for its quotation marks and lack thereof. How qualifications look once you step outside of NCB-land.

  • Amy Tuteur, MD

    Both the MPAA and the EFF have petitioned to be allowed to argue at the hearing and both petitions have been granted.

    • An Actual Attorney

      Dr. A — you probably already thought of this, but you’re going to get a flood of traffic that day from all the media coverage. Please pre-plan a series of posts that take readers through “SOB 101” — or repost some of the most important. Would you consider suggestions?

      • Squillo

        That’s a fabulous idea.

      • Amy Tuteur, MD

        I’d love suggestions.

        • KumquatWriter

          IMG sexual assault
          Hurt by Hombirth recap
          a couple personal stories from people victimized by ncb
          **a piece that is critical of an OB or hospital.
          the doubtful fathers guide
          10 things you shouldn’t say to Dr Amy
          one of.your brilliant statistics/what it takes to understand a study

          IMO, ** would help with the same old “you just love hospitals” blinders

          • KumquatWriter

            I know some are in the sidebar but people are LAAAAZY

          • Karen in SC

            The Hurt by Homebirth recap (with pictures) is so heartbreaking. When you see those beautiful full term babies that needlessly died…. to me that says a LOT.

          • Eddie

            Definitely include some pieces critical of individual OBs and critical of how specific hospital practices have harmed women/babies (such as the 39 week rule, if I remember correctly). That will help show that you are not simply slamming NCB, but are actually critical of any bad practices no matter from NCB or traditional medicine.

        • Certified Hamster Midwife

          Great idea. I would break it down like this. These are the questions that I had when I first started reading your site, as someone who isn’t a mother. Before reading here, I had this vague sense that breastfeeding was good and the high c-section rate was bad, but didn’t care enough to find out why.

          1. Who you are: professional background, why you retired from active practice, the fact that you birthed and nursed 4 babies in addition to delivering thousands(?)

          2. Why do you care so much about where other women give birth since it’s not (professionally) your problem anymore?

          3. What is “NCB” and how does that differ from giving birth in a hospital while doing Lamaze exercises?

          4. Why is homebirth so bad?

          5. Why do you say reading up about birth means people aren’t “educated”? (web culture is full of auto-didacts. you can learn programming online, why not midwifery?)

          6. Why can’t you and people like Gina agree to disagree?

          • Karen in SC

            You should open with something about the fact only a real person can appear in court. Now it’s on permanent record that you really exist!

          • Certified Hamster Midwife

            Nah, big pHARMa hired a motherly middle-aged actress to play “Dr. Amy.” She used to do cough syrup commercials in the ’90s.
            —

        • Eddie

          Something that is constantly, constantly, constantly misunderstood is the difference between 1) whether homebirth should be legal or not, and 2) whether any old person should be able to legally provide medical services and receive pay for said services at a home birth. You are clearly not challenging #1, as much as people think and claim you are.

          Also, the fact that many midwives in the US quote European studies to prove how safe home birth can be, when American midwife training is not anywhere close to European midwife training. For that matter, I’m certain that few outside the medical field understand the different kinds of midwives in America and what their differences are. I’m sure a lot of Americans think that one midwife is as good as another, to the degree that they are aware there are differences at all.

          • Squillo

            Great suggestions, particularly the idea about highlighting the differences between midwives in the U.S. and every other developed nation.

        • Ainsley Nicholson

          On the list should be your negative review of an anti-homebirth paper that was misleading and paternalistic. That one impressed the heck out of me, and shows that you are more interested in truth than ideology.

        • Squillo

          I’d like to see something like a mission statement, if you’ll forgive the corporate-speak: what you believe, what you hope to achieve, and why.

          As a perhaps longer-term strategy, I would also suggest you implement a tagging system, including tags for research, opinion, homebirth deaths (or something similar), etc.

          I’ve also long thought it would be useful to have a “why do they do that?” kind of post, explaining as simply as possible the kinds of interventions that “the loyal opposition” love to villify, why they’re typically done, the risks and benefts (with references). I suspect that many “fence-sitters” get sucked by natural birth advocacy because something happened in a birth that was never adequately explained and the NCB advocates fill the void with made-up reasons (your ob doesn’t follow evidence, she wanted to get to her golf game/get extra money for the c-section, etc.) that sound plausible.

          • Box of Salt

            I have to agree with Squillo. Pretty much everything she said, but especially about the mission statement – hopefully with a lot of links.

            A tagging system would be really, really helpful. Using the “search” box isn’t always, because so many of the topics you write about carry over into other topics, and my searches often bring up way too many hits for me to find what I’m looking for unless I already have a good idea of where it is on here.

            It would be wonderful if we could easily access every single post on here that discusses published papers. All the folks who keep asking “but where’s the data?” will find it.

          • Jocelyn

            Along this line of thought, I would love a post (or reference page) that went over common risk factors and explained why they necessitate intervention, i.e. “Why is breech risky? Why is postdates risky? Why are multiples risky? What are the chances of a postpartum hemorrhage?” etc. It would help people understand WHY doctors recommend what they do.

        • Eddie

          This video, I think is very, very good. http://www.skepticalob.com/2013/04/homebirth-deaths-discussed-on-huffington-post-live.html

          I forget where, but in that video you very clearly state that you don’t want to make homebirth itself illegal. While it’s kind of entertaining how often people come in here with that erroneous claim, it’s probably better to pro-actively set them right and avoid the whole pointless argument.

        • Jocelyn

          You might want to update your Blogroll as well. Several of the links are now “dead links” and lead to blogs that are no longer there.

    • Happy Sheep

      I strongly suggest a short blurb on the main Page that you are not anti midwife, that you have respect for CNMs and that you aren’t against unmedicated birth and that you aren’t trying to make HB illegal. this would cut down on a fair bit of these types of comments.
      Possibly a breakdown of the types of midwife and what you actually mean when the short form NCB is used.
      I second the idea of a “greatest hits” sidebar, with your posts evaluating studies, and your posts explaining about interventions in childbirth. I also always found your posts on the mechanics of labor and delivery very educational as well.

  • Florence

    Any news?

    • Amy Tuteur, MD

      The hearing is currently scheduled for Monday, July 1 at 2 PM.

  • suchende

    It occurred to me this morning, while doing my Evidence bar prep, that Gina deleting anyone mentioning Fair Use off her Facebook page may later lead to her being accused of destroying evidence.

    Many people pointed out to her on her Facebook page that Dr. A had a slam dunk Fair Use defense. Some courts have held that you are required not to “willfully blind” yourself to fair use before filing a DCMA takedown notice. Not did Gina do exactly that, she destroyed the evidence of people alerting her to the Fair Use defense.

    The only question is, how far back did people begin pointing that out to her?

  • Certified Hamster Midwife

    I live close enough that I might have to pop my hamster pups in a sling and watch this all go down.

  • Lisa Miller

    Woo hoo

  • suchende

    I hope you share the date and time; depending on how my bar prep is going I would consider taking Amtrak up.

    • Amy Tuteur, MD

      I’ll let you know once the many lawyers have coordinated their schedules.

  • Eskimo

    Does Gina have to show up too?
    Will she pound the table?

    • Amy Tuteur, MD

      Neither of us has to show up, but I will be there.

      • The Bofa on the Sofa

        Will you be able to hold your tongue?

        I don’t think I could – the first time her lawyer says something about “bullying” I’d jump and object. “Your Honor, this case is about copyrights and fair usage, the perceived demeanor of the plaintiff is immaterial and is prejudicial.”

        • Amy Tuteur, MD

          My husband will be there to restrain me, should it become necessary.

          • Lisa Miller

            Gina has that special type of annoying that might even temp your husband to bite his tongue off. That’s why I’m not going. i don’t want to be charged with contempt for giggling.

          • Amazed

            I can give you a wonderful recepe for smoky potatoes (they were supposed to be stewed, long story that doesn’t exactly speak glowingly of my abilities). Feed the man, Doc. You’ll need him strong and well-nourished. The moment Gina’s lawyers open their mouths with their ‘arguments’, you’ll jump. And the second time. And the third.

            Keep him well-fed and rested.

        • suchende

          Oh my God, if you were my client I would bring a pillow in case I had to smother you.

          • The Bofa on the Sofa

            That’s what my wife says, too.

  • R T

    Very cool!

  • Oiuy

    Is it bad taste for me to show up at the courtroom to watch (with popcorn)?

    • T.

      If you do, we want the report!

    • C T

      Generally no food is allowed in courtrooms. Sorry.

      • KarenJJ

        Too bad. I was planning to head on over with a plateful of Yoni Cupcakes.

        Would love to see the reaction of judge. Or maybe not.

    • Certified Hamster Midwife

      The last time I went to federal court, they confiscated everyone’s cell phones, so not even any live-tweeting.

      • KarenJJ

        They learnt from Lisa Barrett…

  • suchende

    Had my first day of bar prep today.

    If I care about any of my cases half as much as I have cared about this one, I am going to have a happy career.

  • Charlotte

    I know so little about law that even fans of fake court TV dramas know more than I do. I can tell this is good from the happy responses, but if someone could explain what’s going on in a way a very ignorant layperson could understand, I would be grateful.

    • I am NOT more than a slightly-informed layperson, so take this with a grain of salt. If Actual Attorney answers this, take whatever ze says over whatever I say.

      I *think* what that means is that instead of the judge just making a decision after reading all the briefs, Gina and Dr. Amy and their lawyers are going to get together and have actual arguments in front of the judge. They will discuss two issues.

      1) Whether Massachusetts is the proper place for the lawsuit, or whether it should have been filed somewhere else. If somewhere else, Dr. Amy would have to start over.

      2) The actual issue at hand, which is the DMCA takedown. DMCA is a law that deals with digital copyright. I don’t know how much you know about the issue, but basically if someone is using copyrighted material without permission, the owner can force the people who host the material to take it down. So if I post a video on YouTube that has a radio song in it, whichever studio owns the rights to that song can make YouTube take down my video.

      However, there are ways that you can use copyrighted material legally. Those are called fair use. Dr. Amy used a photo of Gina that Gina had posted on her blog; it was clearly fair use. Gina then filed a DMCA takedown on Dr. Amy’s entire blog, which took her blog off the Internet for a short time before Dr. Amy was able to have it reinstated. Gina’s tried at least one other time to do the same thing.

      The DMCA has a provision that seems to say that you can’t file a frivolous DMCA takedown- basically that if you know the material is being used under fair use, you aren’t allowed to file a takedown at all. The owner of the copyrighted material has to prove that zir copyright is being infringed; the other person DOES NOT have to prove they are not infringing. This is an important question with all sorts of ramifications for free speech on the Internet, because if any copyright holder can file a DMCA takedown notice wrongly, ze could literally remove anything from the Internet at all that ze didn’t like with no punishments for being wrong.

      • An Actual Attorney

        That’s basically it, as I understand it. I’m actually an attorney, but not actually a DCMA or intellectual property specialist. If anyone came to me with a DCMA case, I’d tell them to find someone who knew that the hell they were talking about. But this is the internet and I’m just pontificating.

        It’s hard to say more without seeing the order and knowing the judge. I wouldn’t necessarily take this a sign that he’s leaning any particular way. Rather, he wants to hear both sides (and maybe amici) out in person. He’ll probably ask questions. Likely, he will push settlement, because all judges push settlement.

        I’m looking forward to the transcript or recording of the hearing.

        • The Bofa on the Sofa

          Proposed Settlement: stop sending pissy ass notices to service providers over obviously fair usage (the judge has conceded as such) and Dr Amy will drop the suit.

          • Amazed

            Why should Dr Amy accept when she’s going to win? Predicted outcome: Gina is convicted and has to pay more money than she has. Then, if she does something like that again (she’s certainly divorced from reality to try), the lawsuit will be a solid evidence against her.

            Just imagining. No lawyer here.

          • suchende

            There’s really no reason to assume Dr. A is going to win. It’s a “case of first impression,” which is another way of saying anything could happen.

            As a fan of Dr. A and free speech, I certainly hope she wins, but alas.

          • I agree. I think Dr. Amy actually does have the stronger case, based on the exact wording of the DMCA and Gina’s incredible stupidity in telling people that it was a false takedown for the purpose of making Dr. Amy shut up. That doesn’t mean Dr. A will win, though.

          • suchende

            I am not at all sure Dr. A has the stronger case due to the issues with Fair Use Doctrine. Fair Use is a shitshow. It’s almost impossible to know if a use is fair without a judge ruling on it.

            A rule that requires a copyright holder to always consider fair use and only file the take down when the use couldn’t use a fair use defense could never stand.

            However, the 9th cir rule, that the copyright holder must not willfully blind themselves might be salvagable. It would work for big corporations (like those represented by the MPAA) and may possibly apply in this case: how many posters told Gina over and over and over that the use was very obviously covered by fair use?

            (This obviously isn’t legal advice, just my thoughts as a former editor of an intellectual property law journal.)

          • stacey

            She might not win. I think she should, but who knows?

            YES, TFB WAS in the wrong, but at this point, its gone far past just her actions.

            Its is now about DMCA use itself, and there is no guarantee that the judge will side against that type of use of the DMCA (with Dr Amy). The way it is ruled sets precedent, so it looks at more than just Ginas actions. He could easily say that it is better for those notices to be quickly dealt with, even if it silences some, than to put burden on legitimate copyright holders.

            MMPA is on TFB side for a reason- they WANT a DMCA to mean instant takedown, regardless, because they have stuff to lose. They don’t give a crap about free speech. Also why EFF is on Dr Amys side, because they represent the interests of people on the internet that want to post what they want, without getting taken down out of spite.

    • auntbea

      The judge had threatened to dismiss Dr. Amy’s case on the merits (by which he meant he didn’t think there were any.) A lot of important people jumped in to point out that it was in fact a very serious question about intellectual property rights and their abuse. So now Dr. Amy gets to make her case in court.

      It is good for Dr. Amy, but also good for many people who have had their blogs, etc shut down because someone who didn’t like what they had to say filed a bogus copyright notice to have the material taken down. It is often hard to prove that the person who sent the notice did so in bad faith, but in this case, there is a good deal of evidence that Gina filed the notice a) knowing she didn’t really have a copyright claim and b) did it to stop Amy from saying mean things about her. So the threat of a dismissal in this case in particular would set precedent that there is no real legal recourse against these types of bogus claims.

  • Eddie

    Great! Looking forward to hearing about it.

  • areawomanpdx

    hooray! Looking forward to what happens. Guess all those amicus briefs did their job?

  • yentavegan

    Good news! May justice prevail.

  • Great news. This should be interesting…

  • Wonderful news! Good luck (not that you should really need luck, as you have the superior legal position).

    • suchende

      As a matter of law, I think it could really come out other way. It depends how the judge wants to shape the law.

      • auntbea

        I think it depends on whether or not the judge wants to continue being a douche. But that’s probably why I don’t practice law.

  • GuestB

    Excellent! Rooting for you here in DC.

  • Gene

    Damn. Wish I hadn’t moved from Mass or I could be there!

  • Gutsy

    Awesome, best of luck, we’re rooting for you.

  • The Computer Ate My Nym

    So, is this good? It sounds like progress at least (or is that “progress at last”?)

    • Amy Tuteur, MD

      Yes, it’s very good. It gives us a chance to present our arguments directly to the judge.

      • Frequent Guest

        Whoo hoo! Good luck!