Dear tech and legal journalists: the underlying dispute in the DMCA case is neither unsavory nor petty

Access is denied notice on a notebook

Dear tech and legal journalists,

In January of this year, I filed a lawsuit in Federal Court in an attempt to protect my blog, The Skeptical OB, from being hounded off the web by someone who doesn’t like what I have to say, and who was raising money and soliciting followers in an express attempt to do just that.

I had no idea that abuse of the Digital Millennium Copyright Act was a topic of profound interest in both the tech and legal communities and therefore I was quite surprised to see the case reported in these venues. I am very grateful that others recognize the potential for abuse of the DMCA, but I’m a bit concerned that many have dismissed the underlying issue as unsavory or petty. It is anything but.

I’ll concede that the proximate cause of the lawsuit, the picture of the finger seen round the world is both unsavory and petty, but that should not confuse people. The underlying dispute is about censorship, whether purveyors of pseudoscience should be allowed to censor critics when they cannot counter the scientific evidence that the critics present.

I’m a Harvard educated, Harvard trained obstetrician gynecologist who has spent my entire professional life attempting to ensure safe childbirth for babies and women. I am a respected expert on the issue of homebirth, writing for Time.com, Salon.com and The New York Times among other places, and quoted widely.

I am very effective at what I do; it’s not that hard to be effective when the scientific evidence is on your side. I merely present it in a way that lay people can understand. And in doing so, I threaten a multimillion dollar industry of childbirth paraprofessionals such as homebirth midwives, doulas and childbirth educators.

The scientific evidence on safe childbirth is so clear that no professional homebirth advocates would dare debate me in an open forum, despite multiple offers on my part to do so. Rather, they have attempted to censor me.

As far back as 2007 doulas and homebirth organizations sent multiple complaints to the Massachusetts Board of Registration in Medicine (they were dismissed), and as recently as within the past several months, the American Congress of Obstetricians and Gynecologists has received multiple letters from homebirth activists demanding that I not be allowed to speak at a forthcoming ACOG district conference where I am a featured speaker.

While my experience may be the first time that a homebirth critic has been targeted, this is hardly a unique experience for those who fight to correct the misinformation of people who profit from pseudoscience. From Simon Singh, PhD, a critic of chiropractic who was sued for libel, to Dr. Paul Offit, who has tenaciously countered the misinformation of the anti-vaccination lobby and has required a bodyguard for protection from threats against his life, physicians and scientists who debunk pseudoscientific misinformation with scientific evidence routinely face efforts at censorship.

When it comes to the misinformation from the homebirth lobby that threatens the lives of babies and mothers, I’ve found that sunshine is the best disinfectant. Exposing the deaths of babies at homebirth, the efforts of homebirth midwives to escape culpability for injuries and deaths and the misinformation that leads women to choose homebirth in the first place, I’ve found that there is no better antidote than scientific evidence.

My critics obviously agree that there is no better antidote than scientific evidence. That’s why they can’t debate me and why they want to silence me instead. One homebirth activist hit upon filing multiple false DMCA notices against me as a tool for censoring me from the internet. If an activist can do that to me, what’s to stop purveyors of pseudoscience from attempting to use the DMCA to shut down the free flow of information about climate change or evolution? Nothing, unfortunately.

Don’t be fooled by an obscene photograph. This isn’t about a personal dispute and this isn’t about homebirth. It’s hard to debate when science isn’t on your side; how much easier then to censor instead.

  • melindasue22

    In a lot of the stuff I read they kept calling Gina a midwife. Or they would even put doula and then midwife in parentheses.

    • Elle

      I noticed that too! So annoying! I’m sure it’s a lot easier to be dismissive about the arguments if you don’t even know the correct terminology.

  • Lisa from NY

    The information explosion means that women who don’t have time to read everything will read just the pro NCB stuff.
    In short, pseudoscience will still win.

  • Guesteleh

    I’m kind of annoyed that Amy hasn’t acknowledged that the judge’s ruling was a setback for the EFF. The judge ruled that you don’t have to do any kind of research on fair use before sending a DMCA takedown, you just have to have a reasonable belief that there’s a copyright violation. The reason Amy’s case is going forward is because Gina is such a dumbass that she publicly declared more than once that the DMCA notices were being used to shut down Amy’s blog. So even under the more stringent standard imposed by the judge for identifying abuse, Amy has a chance of winning her case. Overall, though, not good news for people concerned about DMCA abuse.

    • Amy Tuteur, MD

      My view is that we will take things one step at a time. Our first hurdle was to convince the judge not to dismiss the case, which he was clearly inclined to do. We’ve accomplished that. Now we have an opportunity to go into greater depth about the DMCA.

    • suchende

      If the judge is interpreting the law correctly, it’s unconstitutional as fuck. I suspect Lessig will take it all the way to SCOTUS if he gets the chance and Amy doesn’t beat him to it though.

    • The Bofa on the Sofa

      Actually, I was surprised that Amy didn’t mention the involvement of the EFF and the MPAA. If this were just a squabble between two women over trivialities, why are the heavy hitters getting themselves involved? Because they know darn well that the legal issues here are of huge significance. Cat fight? Not in the least.

  • Neonpantsuit

    As frustrating as it must be to deal with this kind of crap, maybe feel flattered that they feel so threatened to go as far as trying to silence you. It’s hilarious that they feel women shouldn’t “blindly” follow the advice of doctors, yet expect women to just swallow their bullshit no questions asked.
    You, Dr.Amy, kick some serious ass. Misinformed, anti science, biological essentialist pseudo ass.

  • Rebecca

    I love this post: a great introduction to who you are, what you do, and why you receive so much grief for it. Are you planning to share some updates with us from Hawaii?

  • KarenJJ

    Glad you wrote this. It has been disappointing to read how this is being reported. The language surrounding the underlying debate has been dismissive at best. Dr Simon Singh got a lot of support when he was caught up in a legal wrangle over calling chiropractic treatment ‘bogus’ and nobody said it was petty. Admittedly the BCA wasn’t as insane or as provocative as Gina, but just because one of the parties is a nutbag doesn’t mean that the underlying issue is. Dr Paul Offit has certainly had to defend himself against similar nutters without outsiders assuming he was on the nutter side of the debate too.

    Considering women and babies die because of this pseudoscience in far greater numbers then chiropractic treatment means that dismissing the underlying issue makes very little sense. Unless
    a – the people writing about this issue are unable to read further into what the actual issue is about and unable to look behind the surface of one side being a nutter.
    b – ‘women’s issues’ are embarrassing for them and they’d rather prudishly not read anything about it
    c – ‘women’s issues’ aren’t important and are boring because they’re not about men.

    None of them look good to the tech writers that are writing about it. They are being a dick about this issue.

    • AmyP

      It involves a disagreement between two women about women’s stuff–therefore it must not be important.

      That’s my guess.

      • KarenJJ

        Yeah. Depressing.

        I can understand not wanting to get sucked into the Gina vortex or crap, but to dismiss the whole issue and debate as ‘petty’ is frustrating.

        Bit like calling the vaccine debate petty because of numpties like Jenny McCarthy.

  • Young CC Prof

    Young CC Prof attempts to explain RELEVANT parts of the case, for the benefit of mens who don’t want to read about mommy bloggers:

    Once upon a time, there were two bloggers who disagreed with each other very much. And for a time, all was well, as they carefully wrote posts and rebuttals to each other’s posts, and generally made the Internet a more interesting place.

    One day, Blogger A wrote a post critical of Blogger B that quoted some material, including a photograph. According to the Rules of Internet Debate, Blogger B should have posted a counterpoint. Instead, B filed a DMCA takedown notice with Blogger A’s ISP, despite the fact that the original source had been duly noted and critique is fair use. For two weeks, the offending post was taken down. Then Blogger A put it back up, and another takedown notice was filed, again without evidence. Blogger A had to switch hosts, due to the repeated takedown notices, and finally stopped posting the picture.

    In addition, Blogger A sued Blogger B for filing repeated, unjustified takedown notices to harass and silence a critic. We eagerly await…The End.

    • Squillo

      You forgot the part where Blogger B offered to settle a lawsuit she never actually filed in exchange for Blogger A never writing about her again.

  • Lisa Herrman
    • Poogles

      Autism Speaks is not what I would consider a credible source, nor the journal “Nature” that the study mentioned was published in, so I have my doubts this is anything meaningful. Anyone read the actual study (in mice, btw) yet?

      • Sullivan ThePoop

        What? Autism Speaks is not one of the bad autism groups and nature is a very good journal.

        • LibrarianSarah

          I agree with you on Nature but Autism Speaks is hit or miss at best.

          • Sullivan ThePoop

            Well, I can see where you would say that, but it is not like age of autism or anything.

          • LibrarianSarah

            It shows a sad state of autism advocacy when any organization that is not completely batshit is considered “one of the good ones.” Autism Speaks uses the same ableist language as Age of Autism and creators of Autism Speaks have ties to the anti-vaccine movement. AS isn’t Age of Autism but I wouldn’t give them a red cent of my money. People who are a lot better versed on the topic than me have covered it elsewhere.

          • Sullivan ThePoop

            No, I did not say it was one of the good ones. I said it was not one of the bad ones.

          • Lisa Herrman

            I know that most of the autism sites are crap and don’t accomplish anything, but wanted to put out there about the oxytocin thing. My son is autistic and for years I puzzled about what I had done to him to make him this way. Now I know that it really doesn’t matter. We can’t change it, so we love him as he is.

          • LibrarianSarah

            I’m glad you stopped blaming yourself for your son’s autism and learned to love him for who he is. I wish more parents could do the same. I’m sure most do but until that most becomes all I’d fine myself constantly wishing that more do. Anyway I’m not sure if you read the “Thinking Person’s Guide to Autism” but you might be interested in some of the topic there. They don’t publish as much as they used to which is kind of sad but they have a lot of good stuff. Matt Carey’s blog is also pretty good.

          • LibrarianSarah

            I was not speaking about you in particular. I was saying it is sad that people outside the autism community see Autism Speaks as “one of the good ones.” If you search Respectful Insolence’s blog on Autism Speaks he has some articles that show that there is more behind the curtain in that organization with regards to ties with the anti-vaccine movement.

        • Kalacirya

          A lot of people who are autistic and advocate for other people who are autistic, deeply disapprove of the ideology behind that particular group.

      • Yesacsection

        You’re completely wrong about the journal Nature. Many scientists would give their first born to be published in Nature or Science. Colleagues and dissertation advisors will laud your accomplishment if you are published in either of those journals. I haven’t read the study yet, it’s outside my field. I don’t know anything about Autism speaks though.

  • http://Www.awaitingjuno.blogspot.com/ Mrs. W

    Thank-you for fighting the good fight, sometimes it seems as though there are too few willing to do so.

  • T.

    I hate to use this word, because it is often misused, but here it is: patriarchy. That is the reason most tech and legal experts tends to diminish the lawsuit. Even if they mostly are male, that is not the point. The point is that childbirth is “woman business” and in some way it is not really important for the big, strong male.
    Men, I have found, are remarkably quick in diminish pregnancy and everything related. My suspicious is it is because it doesn’t concert them AND because they feel powerless, and they hate it. It doesn’t matter how big or strong you are: when your partner is pregnant, you can’t do a thing. So it is better to belittle the whole affair than to admit impotence.

    • http://Www.awaitingjuno.blogspot.com/ Mrs. W

      I wonder if this explains the absolute dirth of case law when it comes to women’s rights as patients with respect to pregnancy and childbirth. To say it is thin (absent cases of catastrophic injury) is a bit of an understatement. Meanwhile, even minor infractions of patient rights in other areas seem to get much attention. Look at how many providers disregard informed consent – how many midwives inform their clients of the risks they are taking on? How many ultimately get sued as a result? Good OBs and care providers inform their patients of the risks and benefits of the plan they are considering as well as the alternatives – so why are those who fail to do so, going unpunished?

      • Renee

        Of course.

    • Certified Hamster Midwife

      That’s odd, though, isn’t it? We’re all the products of a pregnancy and a birth. Of course it affects everyone.

    • Bethany Barry

      YES YES AND YES. This was the first thought I had, that the male dominated Tech and Legal blogging/journalism worlds view the underlying dispute as just two “girls” having a petty argument over hurt feelings about their most assuredly wandering uteri. Childbirth issues aren’t “women’s issues.” This treatment of the issue is an insult to both parties.

  • Gretta

    Keep fighting the good fight. You’re right.