Lawsuit update #9: going to court

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Today we appeared in Federal Court in Boston, to hear oral argument on motions in my case against Gina Crosley-Corcoran. It was an amazing experience.

For over two hours I listened to a series of excellent lawyers explain and argue the various aspects of the case.

I was extremely pleased with my lawyers’ presentations and gratified that the judge took such a keen interest, and questioned all the lawyers quite closely.

This was not a trial; we are nowhere near a trial yet. In a typical case, a complaint is filed, the defendant files a response, both side take discovery (examine documents and take depositions), and only then does a trial occur. I filed my complaint, but Gina has yet to file a response because her first act was to ask for the case to be dismissed on jurisdictional grounds. The judge also chose to review the merits of the case. Today we argued about both jurisdiction and the merits.

Fundamentally, the case is about censorship. Gina, by her own admission in print, was trying to get my blog thrown off the web. The weapon she used/abused was the DMCA takedown notice, a procedure governed by the Digital Millennium Copyright Act.

This case is not, and never was, about Gina’s picture of herself giving me the finger. Copyright is not absolute. It is subject to the doctrine of Fair Use. Fair Use defines the situations in which an otherwise copyrighted quote or image can be used in another work. Editorial criticism is one of clearest examples of Fair Use. For example, when a book reviewer quotes a passage from a book to illustrate its flaws, the author is not entitled to claim copyright infringement, even though he or she owns the copyright for those words. When the quotation is being used as part of commentary, its use is protected.

The DMCA requires that the person who files a DMCA notice “must have a good faith belief that there is no legal basis for the use of the materials complained of.” If the material in question is covered by Fair Use, there is no legal basis for a DMCA complaint. We allege that Gina filed the DMCA takedown notices even though she was aware that my use of her image was not a copyright violation.

The DMCA requires that when anyone files a DMCA takedown notice with a webhost, the content in question must be removed for 10-14 days, pending a lawsuit, and then can be put back up if no legal action is taken. In some circumstances, a webhost will take an entire site down until the relevant content is removed. When Gina filed her DMCA takedown notices, she did it to harass me, in the hope that my site would be taken down, as it was intermittently. When Gina solicited others to file DMCA notices, and volunteered to act as the legal agent of others in filing DMCA notices, she did it with the intent to silence me, as she has acknowledged on her own Facebook page.

I filed suit to stop the harassment, to stop the attempt to force my blog off the web, and to stop the knowing abuse of the DMCA notice process by filing a notice of a copyright violation after Gina already knew that her copyright was not violated. Congress, in writing the DMCA legislation recognized the possibility that copyright holders might file frivolous DMCA notices, and set up a penalty for those who abuse the process.

The Electronic Frontier Foundation and the Digital Media Law Project of Harvard Law School filed a brief explaining why they agreed with me that I had stated a legally sufficient claim that Gina’s conduct constituted an abuse of the DMCA process. The Motion Picture Association of America filed a brief explaining why the DMCA process should not require that copyright holders make an effort to determine if the purported copyright violation was actually covered by the doctrine of Fair Use.

This issue is so important to the EFF and the MPAA that they took the unusual step of petitioning the Court to be allowed to argue alongside the lawyers for myself and for Gina. They were each granted 15 minutes to argue the specifics of their views of the DMCA and the abuse of the process, and I was fascinated to hear a detailed and extended analysis of the meaning of various parts of the DMCA.

There have been lots of side issues that have been briefed and were discussed. Most prominent among them is the jurisdiction issue. In Gina’s original motion to dismiss for lack of jurisdiction, she argued that she had no connection with Massachusetts and did not know that I lived in Massachusetts. However, she is on record directly on her Facebook page, proclaiming that she knew my address on the very day that she filed the second DMCA notice.

In addition, Gina argued that it would be too burdensome to litigate a case in Massachusetts. But the blizzard of paper that she has sent to the Court indicates otherwise. Gina has filed six separate briefs already, and hasn’t even responded to the original complaint yet! Clearly, she has no trouble litigating in Massachusetts.

But no one should forget that at the heart, this is about an attempt at silencing me. The abuse of the DMCA was just the means, and Gina’s photo was just the pretext.

The tech community has expressed deep interest in the case because they are concerned that the DMCA can be wielded to silence speech. If the standard for abuse is set too low, it will be difficult to show that anyone ever knowingly and deliberately abused the DMCA process. They are following the case closely because it is the only one in which the defendant has publicly acknowledged that she was using the DMCA, not to protect copyright, but to silence someone with whom she disagreed. As a number of tech bloggers have noted, if this isn’t a violation of the DMCA process, there is no such thing as a violation of the DMCA process. That cannot be what Congress intended.

At this point, all I am arguing for is the right to go forward, to have Gina answer the complaint, turn over her documents for review and submit to a deposition to determine what she knew when. We haven’t even gotten to the actual case yet. It is up to the judge to decide if we will ever get to it.

  • itry2brational

    “For a movement[NCB] that claims to be about empowering women…”
    “Despite all the talk of empowerment, the role of victim is hallowed in natural childbirth advocacy…” -Dr. Teutur in “Bath Rape”
    “The drive of the NCB movement has shifted – its shifted to a more rights and empowerment movement and less of a “natural” one.” -me

    “the rhetoric of choice is one of the most powerful weapons deployed by birth activists in their campaign to increase access to alternative childbirth choices” -Katherine Becket in Feminist Theory
    “They emphasize the feminism(choice, empowerment) in order to justify choosing(choice/rights) NCB and all their other bs.” -me

    For the people voting my comments down and contesting this, where do -we- have it wrong? It seems I’m failing at helping people see the connection, help me see where we are not saying practically the same thing.

    http://www.skepticalob.com/2013/06/bath-rape.html

  • Mom to three, via C

    As the victim of a somewhat similar lawsuit, I’m keenly interested in how this case is resolved. Thank you for fighting it – and for shining some sunlight onto the absurd homebirth movement. My second child was born, via urgent c-sec, with his cord tied in two knots. Detected thru fetal monitoring (inexplicable early decels), I had a CNM as doula, in-hospital, and zero complications for me or my baby with a quick surgical delivery. Susan Walker (as in “Filler v.”)

  • itry2brational

    When people abuse a law their abuse makes it more difficult to go after the real criminals. The tactic of censorship is common among feminist activists, just look at how they successfully changed Facebook’s policies with minor pressure.

    Many are trying to deny the connection with feminism. She’s The -Feminist- Breeder. Whether you agree with her particular version or brand(2nd wave, 3rd wave, radfem etc) of feminism doesn’t matter, she’s popular with thousands and thousands of others who -do-. She is using feminism as part of the appeal and feminism + birth have a long, well-documented history – before TFB was even born.

    Some have tried to argue that feminism isn’t the way the NCB woo meme is transferred from one woman to the next but woo doesn’t offer any special appeal to women in particular. Feminism -does-. Very few women can reject a message of oppression/victimization and empowerment, or rather be skeptical of its claims. To argue that the woo aspect of NCB is the appeal and how the meme spreads would require saying women are more prone to natural woo to begin with/innately and would be a bit of a disservice to women. The empowerment appeal of feminism is rational by comparison.

    But you don’t have to take my word for it, just read their materials and the things they share – the strength, rights and empowerment messages will be prominent. The drive of the NCB movement has shifted – its shifted to a more rights and empowerment movement and less of a “natural” one. They emphasize the feminism in order to justify choosing(choice/rights) NCB and all their other bs. They emphasize the feminism in order to have a stronger influence on the politics involved. Example: The first radio show Gena Kirby did once the Rowan Bailey story erupted, “The Witch Hunt: Midwifery & the myth of *Freedom”(*choice/rights) stressed in the show itself, ‘this isn’t even about Rowan’ – let alone the baby or family. Its why I ended my friendship with her.

    The sooner we accept The -Feminist- Believer-in-NCB-woo for her own stated beliefs the better. She’s a feminist first and foremost. And she has dozens of similar ideologues, like Kirby.

    “Midwifery and women’s right to choose

    Women’s right to choose the place and circumstances of their birth deliveries is also stressed by birth activists. Given that physician-attended birth has become the norm, this has largely meant the right to choose a midwife-attended, out-of-hospital birth. As Ina May Gaskin, author of Spiritual Midwifery and current President of the Midwives Alliance of North America (MANA) put it, ‘We feel that returning the major responsibility for normal childbirth to well-trained midwives rather than have it rest with a predominantly **male** and profit-oriented medical establishment is a major advance in self-determination for women’ (1975: 11).4 To deny this choice is to allow the state to limit reproductive freedom and treat women as mere vessels of the foetus (Rothman, 1989). Though simple, **the rhetoric of choice is one of the most powerful weapons deployed by birth activists in their campaign to increase access to alternative childbirth choices** (see Beckett and Hoffman, 2005) and, ironically, links first wave advocates of pain medication to second wave critics of the widespread use of that medication and other medical interventions”
    -Katherine Beckett in Feminist Theory

    **emphasis mine

  • DRA

    I just read about your ordeal regarding the false DMCA notices from another source, and I felt inspired to come to your site and lend a word of encouragement.

    You’re fight to enlighten people on the issue of home birth is admirable. Your fight to keep your fundamental right to freedom of speech is even more admirable in my, albeit selfish, view. We all need to fight harder for principal and integrity. Thank you doctor for doing your part.

    • Amy Tuteur, MD

      Thanks!!

  • Catch

    The MPAA abuses DMCA requests countless times everyday. A blogger abuses it while ******* off and over oppionated Doctor and poop hits the fan. I hope both parties waste a bunch of cash and time over this.

    • Karen in SC

      Why don’t you file suit against the MPAA for the abuse of the DMCA? Meanwhile, did you miss this:

      “As a number of tech bloggers have noted, if this isn’t a violation of
      the DMCA process, there is no such thing as a violation of the DMCA
      process. That cannot be what Congress intended.”

    • Box of Salt

      Catch, I find it interesting that you are freely posting your comment on the blog which was (briefly) taken down, prompting this lawsuit you believe is a waste of time.

    • Squillo

      And yet, this case could set a legal precedent that might curtail the MPAA’s bogus takedown activity. Which is why a bunch of people who don’t give a rat’s posterior about Amy, The Feminist Breeder, or childbirth in general are interested in it.

  • Good luck – and thank you for fighting the good fight.

  • Karen in SC

    Glad to get the update, but dang, the wheels of justice turn too slow!!

  • Renee

    Good luck
    With the corporate bent in the US, I am not sure you will prevail, even though its obvious you are right.

  • AussieAcademic

    Good luck!

  • Susan

    Good luck Dr. Amy!

  • Antigonos CNM

    Very interested to see how this is progressing. Any idea on how soon a ruling might be expected?

  • Terri C

    Good luck!!!

  • Anj Fabian

    “This issue is so important to the EFF and the MPAA that they took the
    unusual step of petitioning the Court to be allowed to argue alongside
    the lawyers for myself and for Gina. They were each granted 15 minutes
    to argue the specifics of their views of the DMCA and the abuse of the
    process, and I was fascinated to hear a detailed and extended analysis
    of the meaning of various parts of the DMCA.”

    Very intrigued by that. I’m not sure how common that type of petition is or how often it is granted.

    • An Actual Attorney

      V. rare at this stage of the case. Usually granted though, especially when the amicus has some sort of expertise, as is obviously the case here on both sides.

  • quadrophenic

    Two hours is a very long time for this type of hearing. I can’t wait to hear how it turns out.

    • KarenJJ

      Two hours doesn’t seem all that long to me! I’ve been in longer meetings for less….

      I’m very interested in this case too.

  • RawrRawrI’mADinosaurRN

    Can’t wait to see how this all pans out. Might need to take a day and visit the courthouse to watch myself, when it finally gets to trial that is

  • KumquatWriter

    One more step down, and congratulations! I am eager to see what turns up in Discovery. Was there any issue with using screenshots?

    • Certified Hamster Midwife

      I am curious about this. Either you’d have to prove that the screenshots are genuine, or get the original version of the message from Facebook, which they surely have in their records.

      • Lizzie Dee

        Not sure about the law, but it seems that this is not now about the merits of your case – where Gina doesn’t have much of a leg to stand on – but the implications of it for much more complex issues. I would find that quite frustrating.

        An inside glimpse into how the law ACTUALLY works, as opposed to outsider assumptions, is always fascinating though. Except it does tend to work very slowly and frequently incomprehensibly.

      • Bernard Rieux

        It probably won’t come to that. Presuming Dr. Tuteur is successful in beating back the current Motion to Dismiss, she’ll be able to conduct discovery—that is, the process during which the parties solicit information from one another.

        Dr. Tuteur’s counsel can (I’d say should) send Crosley-Corcoran what’s called a Request for Admission, asking Crosley-Corcoran to admit that the Facebook post (a copy of which Dr. Tuteur’s counsel provides) is authentic. If Crosley-Corcoran admits it, that’s all the authentication that’s necessary; the court can accept the post as the genuine (heh) article. If Crosley-Corcoran refuses to admit it, she sets herself up for severe sanctions, potentially up to and including perjury, when Dr. Tuteur subpoenas Facebook to authenticate the post. As a result, Crosley-Corcoran will almost certainly admit that the post is genuine, and this issue won’t be a problem.

        – Rieux, Esq.

        • Squillo

          Thanks for the explanation!