Lawsuit update #10: good news!

American justice series

I’m pleased to report that the judge agreed with our arguments and those of the Electronic Frontier Foundation/Digital Media Law Project of Harvard Law School and denied Gina Crosley-Corcoran’s motion to dismiss my lawsuit. The case will be going forward in Massachusetts.

EFF makes the valid point that even a two-week improper removal of lawful speech from the public domain “‘causes significant injury . . . where time-sensitive or controversial subjects are involved and the counternotification remedy does not sufficiently address these harms.’

And:

Because, for present purposes, “a knowing and material misrepresentation” is adequately pled, defendant’s motion to dismiss is DENIED.

You can read the full opinion here:

https://dl.dropboxusercontent.com/u/27713670/Tuteur-20130910_Court_order_denying_motion_to_dismiss.pdf

  • Squillo

    Does anyone else find it amusing that Crosley-Corcoran has used a line from a copyrighted Huey Lewis song in a recent blog post–which may or may not fall under Fair Use (hint: it wasn’t for commentary or satire of the song, and the blog is a commercial enterprise).

    • Karen in SC

      Hip to be Square?

      • Squillo

        “I Want a New Drug,” actually.

  • Florence tirakayos

    Anyone else thinks that the dead silence on her page is just delicious… ahahah Crikets…

  • DelaLuna

    What the heck does that decision say?
    1. The case will be tried in Massachusetts,
    2. Gina did not have to consider whether or not she had a valid reason to ask the blog host to shut you down, and
    3. But you can go to court to dertemine whether or not you can post the picture due to “fair use”?

  • Amy Tuteur, MD
  • Anonymous

    I wonder how the birth nutters will spin this.

    • Florence

      DrA bought the court, they are all just plain mean!

      • Shane

        You are retarded. This isn’t Mexico, you can not just buy the court.

        • An Actual Attorney

          That was sarcasm, Shane.

  • Aussiedoc

    “Legal naïf”. I reckon I can hear the angry screaming an ocean away.

  • Val

    Congratulations and good luck!

  • ThePinkSuperhero

    Has a date been set?

  • SometimePossiblyMostCertainly

    Thank you Dr Amy for fighting this very important fight!

  • is there a cliffs note type thing on this lawsuit? can it be explained in a paragraph or so? If not feel free to ignore me, I’m just curious and sick/sleep deprived.

    • holy crap, should have read the opinion before replying. its exactly what I was asking for! sorry, and DUH.

  • auntbea

    Attorneys: can one grant copyright permission and then revoke it later? Is permission assumed to be permanent or temporary, unless otherwise negotiated? So, in other words, if Gina’s instruction to “take it back to your blog” were to be ruled as granting permission, can she then say she revoked it with the cease and desist?

    • meg

      No. That’s not how copyright works.

      • Lea

        That’s not how fair use works, but in the context of a licence to use the copyrighted work, yes, it is possible for the licence to be revocable. Whether it is depends on the context, if it was not specifically addressed in an agreement.

    • Squillo

      To be clear, many contracts that license rights contain an “expiration date” at which point certain (or all) rights revert back to the licensing party. But that’s based on a mutually agreed-upon contract. “Take it back to your blog” could be construed as an unlimited license, I guess.

      • auntbea

        So if I say, sure, use my work, but then I don’t like what that person does with it, I can’t then reclaim my copyright?

        • I am fairly certain that how it is used is more important than your permission. Using your work to make a profit against your wishes is a serious legal problem, but using it to critique/educate is protected. I don’t think anyone has to even get permission for the 2nd one. That is my lay-persons understanding from reading articles.

          • auntbea

            I mean in the case where fair use is not an issue (because then fair use is the only issue,)

        • Squillo

          An attorney could address this more fully, but if I’ve signed a contract giving you a license to use it, unless there’s a clause that says I have approval, no.

          I don’t what the law says about informal agreements or implied license.

    • Amy Tuteur, MD

      The real issue is “fair use,” not copyright and not implied license. According to the statute, fair use means that the copyright has not been violated at all.

      So, for example, if a reviewer uses a sentence from a book in an unfavorable book review, the copyright holder (usually the author or publisher) cannot claim copyright violation.

      As I understand it, fair use isn’t merely a defense against a copyright violation claim, it means that the copyright was never violated in the first place.

      The judge said months ago that he thought my use of the photo was almost certainly fair use.

      • auntbea

        I am setting aside the fair use argument for the moment, and trying to clarify copyright in general: is the default for license (implied or otherwise) that it is permanent, or that the copyright owner can revoke it? In other words, is granting permission like selling your property or renting it out?

  • Eskimo

    Uh oh, now she is being forced to take responsibility for her own actions. She isn’t gonna like that too much…

    • auntbea

      She is not being forced to take responsibility. She is being forced to endure more persecution as the only reasonable one in a world full of bullies and idiots.

      • meg

        And they come out of the woodwork …

        • auntbea

          Took a risk on the snark. Got the down vote. Boo.

          • meg

            Ah, I see. She has so many little minions hiding everywhere (they’re like bedbugs), it’s hard to tell when it’s satire and when it’s a genuine outpouring of “support.”

          • Eskimo

            I’m sorry I made the remark about responsibility. I just hate birth. And women.

            (Look! I’m snarking with you! Look at us!) 😉

        • Anj Fabian

          I believe it is snark.

  • auntbea

    I see the judge has redeemed himself. Or fired that law clerk. One or the other.

  • Amy Tuteur, MD
    • Dr. W

      Criminy, why does every conflict between two women HAVE to be portrayed as a catfight? Beyond the horrible dismissive sexism, it is so deeply unimaginative. Humor demands variety. If I know exactly the sort of imagery you are going to use every time, it is never funny. Couldn’t somebody post about the story with two folks in glasses as thick as mine slap-fighting, or something?

      • Statistika

        Some of us on GOMI, myself included, are definitely objecting to the catfight imagery. But yeah, some people definitely get caught up in posting animated GIFs that completely mischaracterize the issue.

        • Karen in SC

          You mean people just post endless GIFs, each trying to outdo the next. GOMI – GIFs Or Mean Insults …

  • Suzanne

    Yessss! Go Team Amy! 🙂

  • Dr Kitty

    I can’t read the link-but great news.
    Digitus Impudicus- everything sounds better in Latin (I just wish the 5 years I studied it at school had left more of an impression).

  • Yesacsection

    Good luck dealing with the legal naif who used the digitus impudicus! I had a hard time keeping my morning cup of coffee in my mouth.

    Best wishes for a satisfying outcome, it’s personal to me! This morning I got to snuggle with my 11 month old daughter who is walking, talking and grinning. She was born with an Apgar of three. I almost died. I thank the voices of reason I heard during pregnancy (you being the sole internet one)that we gave birth in a hospital and did not have to wait for oxygen or paramedics to arrive.

  • Biscuitfruit

    This is fantastic news!

  • This is wonderful. Good luck in the next phase.

  • hurricanewarningdc

    Congratulations. The determination that there is in fact a tangible harm and there was in fact a misrepresentation that occurred, related to that harm, is certainly a victory. Good luck in the next phase.

  • stenvenywrites

    Thank you for posting the link to the full opinion. Now “digitus impudicus” has become my favorite magic spell.

    • Zornorph

      It’s DigITus Impudicus. You’ll never get it right if you pronounce it that way.

      • WhatPaleBlueDot

        Take ALL of my upvotes!

    • ersmom

      And it’s a flick, not a wave of the wand! 😉 HP geek.

      • kumquatwriter

        SWISH and flick! You want Seamus to explode again??!

  • Dr. W

    Congrats. I do not think setting Internet law precedent was your goal for this blog, but it may end up being what it is most broadly remembered for, either way the case goes. Hope it continues to go your way. With your foot in the door, it sure seems like Gina is pretty screwed, since she admitted in print willful deceit for the purpose of harm.

    • Young CC Prof

      I think you’re right. One way or another, Dr. Amy has turned a little tempest over a “women’s matter’ into the potential for a major legal precedent that folks (young, childless, mostly male tech-heads) who don’t know or care about home birth or the mommy wars will take an interest in. I follow the case with interest, both for the sake of this blog and for the sake of intellectual property law.

      • Zornorph

        Hey, who would have predicted that Anna Nicole Smith would wind up being the subject of a Supreme Court case? Life is funny sometimes.

      • Tim

        absolutely. even if I didn’t agree with Dr T’s views presented here on the blog (which I do for the most part) , I am 110% behind her in this case. the selfish copyright monopoly in the US needs this blow to show that there can in fact be consequences for not doing their due dilligence. give em hell!

        • Squillo

          Me too. And as someone for whom enforceable copyright is important to my bottom line, I think we’ve veered from reasonable limits designed to encourage and reward creativity into unhealthy protectionism.

          • The Bofa on the Sofa

            We do have fair-use policies, and overall I think they work very well, so it’s not the law that’s the problem. In fact, in this case, I don’t think anyone doesn’t believe that Dr Amy’s use is within the realm of fair use. The judge has effectively conceded such, yes?

            The problem is not whether Dr Amy actually had the legal right to use the picture, but it is about Gina using copyright infringement threats as a means to prevent her from using it, despite their lack of merit. She is abusing the service provider’s policy of removing questionable material for a case where there is not a question over whether it is usable.

            At one point, at least, I know that Dr Amy was referring to the argument that GCC faulted by not considering fair use in demanding that the picture be removed.

          • Squillo

            I think the law is the problem, in that it neglects to spell out whether a copyright-holder must consider fair use prior to sending a takedown notice. In the order, Judge Sterns notes this specifically, and notes a common counter-argument (that such a requirement would defeat Congress’s purpose in providing an expeditious remedy to copyright-holders.) The law also seems to contain a loophole that allows rights-holders to file serial takedowns without ever having to prove legally that a use is infringing, which is why the only remedy for those accused of infringement is to attempt to do what Amy’s doing. Ultimately, I think it places an undue burden on alleged infringers, as it is incumbent upon anyone asserting copyright to be familiar with its general limitations–how hard would it be to require a rights-holder to consider fair use when filing a takedown notice? Not very. But not many people are willing or able to mount a lawsuit to combat a takedown notice.

          • Tim

            That’s exactly it – The MPAA’s position in this is that it’s too cumbersome for them to make sure there is valid infringement going on before filing a DMCA takedown notice. But that shifts the legal burden to those who are more likely to be un/underepresented legally (alleged infringers) , when it should be on those who are more likely to be well represented (the copyright holders themselves.)
            I have zero problem with the MPAA enforcing it’s copyrights – I do have a problem with them arguing that it’s more reasonable for the courts to expect joe six pack to deal with the legal consequences of their drive by takedowns, than for them to do some due dilligence in their takedown filings. (Rather than just directing DMCA notices to every google search result they find, which numerous events have shown is exactly what is happening – like filling DMCA requests against HBO Go, or public domain book downloads which share part of their title with a TV show, etc)

          • Squillo

            What this means, in effect, is that if someone posts a paragraph from a book I’ve written in order to write a review, I can file a DCMA. Then, after two weeks, when it gets reposted after I’ve declined to take legal action, I can file another one, ad infinitum, until the critic’s ISP drops the critic, or the critic files suit a la Dr. Amy.

            Because, hey, just because I’ve opted to become a publisher, it doesn’t mean I have to be familiar with copyright law.

          • Tim

            Welcome to the MPAA’s dream world of government sponsored monopoly of culture.

          • Tim

            The issue is not over fair use itself, correct. It’s about whether it’s ok for a copyright holder to not do due dilligence or consider fair use before filing a DMCA notice, either because they feel it’s too onerous a task(MPAA’s position) or because they were using the DMCA as a way to silence a critic (Which is what GCC clearly did, and admitted it publicly)

          • moto_librarian

            I have to disagree that fair-use works well. It CAN, but only if we have people with deep pockets to fight frivolous claims. You would not believe the number of faculty authors that I work with who are not allowed by their academic publishers to make fair use claims over quotations, song lyrics, etc. Publishers don’t want to get embroiled in legal disputes over copyright even when the material would certainly survive legal challenge, so they simply pay for everything to avoid it. Thus, fair use has been eroded because the only way to prove it is in a court of law. I am not saying that I have an answer for how to solve this (if I did, I would be a lawyer, lol), but this is a huge problem.