Yesterday Gina’s lawyer filed a brief in response to my Memorandum to show cause. You can read the full brief below. In it Gina asserts that my original host, Bluehost, never took down my blog:
Tuteur’s failure to allege that BlueHost took down her site is not inadvertent. As Tuteur is well aware, once she sent BlueHost her counter-notice, BlueHost told both parties that it would take no action. See Exhibit 1 (“The copyright claim regarding this domain has a counter claim issued. If a counter claim is submitted, it will be up to the two parties to pursue legal action.”)
…Because neither BlueHost nor Daring Host removed or disabled access to any materials on the Plaintiff’s site at all (and certainly not in response to Crosley-Corcoran’s DMCA takedown notices), Count I of her Complaint must be dismissed as a matter of law.
Really? Really??!!
What about this?
Let me quote in case it isn’t clear enough to read:
… I simply armed myself with bigger cannons. I went straight to her hosting provider.
Within a week, her host responded to the copyright violation by taking down her ENTIRE BLOG.
(Later, her blog was restored after my image was taken off her site.)
So not only did Bluehost take my site down for copyright violation, Gina BOASTED that it took my site down for copyright violation.
Oops!
Stay tuned for more developments.
Gina’s brief:
https://dl.dropboxusercontent.com/u/27713670/CC_Brief_re_Order_to_Show_Cause.pdf
OT: Look at this piece of misleading internet garbage — http://www.dcmidwife.com/HomebirthMidwifery.html
Totally outside the scope of NPs in DC.
If anyone felt like contacting the department of health: http://doh.dc.gov/node/148942
She’s not an NP (nurse practicioner), she’s an ND and CPM.
Sorry for the confusion — the license she has is a “naturopathic physician”
The regs are very clear she shouldn’t be delivering babies without an OB back up
But she’s a *board certified* naturopathic physician!
That sounds like so many CPMs in WA. There is a CPM in Oregon who had her licence taken away, but she still catches babies because she is a “doctor” as in naturopathic physician.
I seriously worry that with her obvious mental health issues, Gina won’t “cease and desist” even if [and/or when] she’s told to.
Gina is now crowing that she got an amicus brief from the MPAA.
http://www.techdirt.com/articles/20130509/01272923016/key-legal-fight-shaping-up-over-legality-dmca-abuses.shtml#c536
She has no idea that she has instantly lost all credibility with this action. The single largest institutional abuser of the DMCA takedown process is defending someone who has also apparently abused the process. Shocking. Just shocking. And she really seems to think interest in the case is all about her. That this is all about her. Not about abuse of the DMCA takedown process. Nope, she is just that powerful and interesting. Sorry. Don’t care about her. The lawsuit is very interesting though.
I do find it ironic and hypocritical, after trying to say that the EFF amicus brief shouldn’t be allowed, that she is so pleased to have an even bigger organization filing one on her side of the case. But hmm, of the two organizations, one is absolutely morally bankrupt and the other one is the EFF.
Every time she comments outside her Facebook page and blog the smack is laid down so hard. I can see why she thinks the world hates her. It Does, no matter how diverse the topic she is rattling on about, everyone paying attention in that group is so beside themselves over what a self important know nothing she is she always garners nasty comments.
I noticed that too. What Dr Amy has written about Gina is quite friendly compared to some of the others.
I had been wondering if they would pay her legal bills. The last thing they want is her losing.
Gina doesn’t really appreciate that she loses whether this case goes through or gets dropped. The stress of it, the time spent away from her family and hobbies, and obviously the money she’s is losing is one big loss for her. No one wants this in their life. All because she can’t keep her mouth shut before thinking about the consequences. The publicity labeling her as an unpredictable liability surely will impact her employment options. But she thinks this is just grand. In those regards, so is going through a divorce or alcoholic withdrawal.
“the time spent away from her family and hobbies”
This sort of drama IS her hobby.
I think that’s accurate. No matter how this plays out, she’s already lost: she’s out time and money, and she doesn’t get what she wanted all along–for Amy to stop talking about her. Instead, she’s got a whole new and much wider group of people writing about her (or maybe that’s what she really wants–but we’ll leave that to the psychiatry books.) She’s not going to be filing any more DMCA takedowns on this, and all those folks she was getting together to file? I’m guessing they’re backing away from the computer slowly.
What’s important now is whether or not this case sets a precedent that could help the thousands (hundreds of thousands?) of others who don’t have Amy’s resources and find themselves on the receiving end of the censor’s bang stick.
Ok. Enough with the intellectual discussion. Now that she thinks she’s got the MPAA on her side, Gina’s expecting to hear crickets over here. These well written analytical posts just aren’t cutting it!
I read the MPAA amicus and found it to be pretty persuasive, but everyone needs to remember almost none of the law relied on by other side is controlling in the first circuit. Really, anything could happen.
The MPAA certainly has a legitimate interest in this case, and it’s no surprise that they threw their hat in the ring once their archnemesis, the EFF, got involved.
I don’t hate the MPAA (or the RIAA) as much as do others who feel as I do about the problems inherent in the DMCA and other copyright law. They have a real problem–the need to protect the legitimate rights of their members–but they have a broad tool with which to do it. The problem is that they wield it with reckless abandon, and the current law allows it.
It highlights just what’s so difficult about copyright law. How do you balance the legitimate interests of artists and other “content creators” (how I loathe that term!) with the public interest in having open and free discourse?
I found it convincing as well, although I think they may have overstated EFF’s case in order to rebut it (would have to go back and read more carefully.)
What I don’t understand is whether if A files a take-down notice and B files a counter-notice and then A fails to file suit in 14 days, whether A is allowed to file another notice. Because that’s what happened, right?
Amy’s suit alleges that she filed “serial takedowns”–one when she was on BlueHost, and, “upon information and belief,” others when she had a second host.
Crosley-Corcoran’s 1/23 Facebook post seems to suggest that she intended to do so:
“I’m prepared for the site to be back up in another 5 minutes, BUT, if she keeps on doing what she’s doing, this will keep happening.”
But is it inherently problematic that she filed multiple DCMA notices, without filing suit? Or only if she did so in bad faith?
ETA: Sorry if I am being legally dense, everyone.
I’m pretty sure multiple subsequent DMCA notices for the same alleged infringement without filing suit would be considered to have been made in bad faith.
I would think there would have to be bad faith demonstrated. I suspect that filing multiple notices, in combination with the various statements Gina made, is part of the argument that it was bad faith, but I don’t know.
Part of the problem with the law as written is that there is no disincentive to do exactly that: file one or more notices with no intention of pursuing an actual claim.
Well written for sure. It relies pretty heavily on Rossi and Campbell; is that what you’re referring to?
If you look at the case list for MPAA’s amicus, you will see that (I think) only one case they rely on is in the first circuit, and they also cite one SCOTUS case. Those are then the only cases that are binding on this court. Everything else is just a friendly suggestion. The matter is very much still up in the air.
I have a totally OT question that has nothing to do with anything written here, but I know there is such a huge pool of people with The Smarts that this is the best place to ask.
Can anyone explain the psychology behind this:
Mom and Daughter talk on the phone most days, alternating who calls who but without keeping track of who called last. Mostly they call each other when bored, waiting for something, etc.
Mom stops calling daughter entirely. Daughter continues to call, but they are now talking every few days. Mom starts complaining during every single call that the daughter isn’t calling enough. Daughter suggests she pick up her own phone and call once in a while if she is so worried about it. Mom claims Daughter “Never answers.” Which is false, and continues to refuse to call.
Met with complaints, passive aggressive emails, etc Daughter is even less inclined to call, and calls are now about once a week. After having her baby diagnosed with birth defects and being hospitalized in the ER with food poisoning in the same week, Daughter does not get a phone call from Mom, though Mom does call Son in law to complain that Daughter hasn’t called. Daughter comes home from hospital to an inbox full of emails demanding phone calls, and posts on Facebook about how “nice” it is to have such uncaring family members…as though Mom were the one hospitalized and having a high risk pregnancy and no one bothered to call her or say “I hope everything is ok.”
Disgusted, Daughter has not called Mom since before the baby news or hospital stay.
At this point Daughter can’t figure out what the deal is with Mom’s refusal to call under any circumstance, and why when D was hospitalized she didn’t even ask Son in law if daughter was OK, just demanded answers as to why D wasn’t calling. Daughter can’t tell if she is refusing to call Mom at this point due to some weird power struggle, or if it is solely being disgusted at the series of narcassistic behaviors, and a desire to avoid being reprimanded for not phoning earlier and otherwise hear about what a selfish jerk she is for not calling.
I don’t “do” social interaction. I feel like I could have fielded this back in HS, but now I’m just mystified. I assume the grown up thing to do would be to just start calling every single day to placate the situation (although stress of high risk pregnancy plus two toddlers at home…avoidance has been working out pretty well), but what is the deal with the ceasing calling and then acting out like the other persons behavior is the one that changed? Is that a manipulation tactic? I feel like there is some weird psychology at play that I just ont understand. What would you do? What is with the weird victim situation she invented? I’m fairly comfortable just ignoring her until she gets over whatever she imagined herself into, but I’m really curious about the mechanics behind how it got to this point if anyone has any input.
So.
How is Mom doing? Has anyone checked in on her in person recently? Can someone do so?
She lives with my dad (so not totally isolated) and seems to be still conversing with her usual friends, if Facebook is any indication. If anything, she is probably talking to her friends more often than usual because she will be giving the play by play of how terrible her selfish daughter is with daily updates on how I still havent called. At least that is what she’d do with me when she’d decide one of her sisters or other friends was slighting her in some way.
In many ways, she has a lot in common with TFB, and I’ve come to accept her general toxic attitude and refusal to get any treatment whatsoever. This instance though has me mostly baffled because nothing preceded it. If I’d forgot to call her on her birthday, her deceased mother’s birthday, or even disagreed with her on something she deemed a crime against her,(such as the neighbor that has a terrier lets it bark 15 minutes a day in the yard specifically to drive her crazy) then this kind of fallout would be expected. That it just materialized out of thin air has me confused and wondering what the deal is.
I’m used to asinine and hostile, not used to it being 100% invented vs just a gross overreaction.
this is about her not being the centre of attention because you are selfishly experiencing your own problems which are not all about her. there are some great yahoo groups for relatives of people with borderline personality disorder, I think you would recognise a lot in there and get a lot of support.
your mom is likely to wake up one day and decide she is over it and forget it ever happened (they tend to wipe out history) so my advice would be to just deal with it in the way that has the least impact on you and ride it out. soon someone else will be the villain and you will be off the hook.
Sounds like borderline personality disorder to me too. “Stop Walking on Eggshells” is a good resource.
I’m with Anj on this. Does Mom have a health issue the rest of the family doesn’t know about?
Your next comment appeared before I posted.
The fact that this “materialized out of thin air” suggests more than just a psychological cause.
Hmm, I don’t know. I feel like if she had a health issue she would make a massive deal about it. When she was diagnosed with a low thyroid when I was in high school I thought it was a terminal illness and that she’d be dead in a few months because of how she carried on about it. Later I realized that is obviously not the case with simple low thyroid. Another time she said she was dying of skin cancer and I flew out to go to the doctor with her, and it was actually no cancer whatsoever and just some moles her doctor suggested she have removed. But, no, she hasn’t come out with any diagnosed medical problems to me/brother/dad.
What kind of health issue should I be watching for beyond psych issues?
Unfortuantely some people get addicted to the martyr roll. It is a wonderfully freeing role to play as everything is the fault of (insert scapegoat), and thus there is no need to take responsibility for their own faults.
It is often correlated with depresssion and anxiety, but it is extremely difficult to get these individuals to seek help as they already KNOW what/who their problem is, and don’t wish for this perception to be challenged.
Sometimes this can get worse if somebody is in the very early stages of Alzheimer’s disease – they are dealing with increasing frustration in daily life and lash out.
Sometimes our personal attributes get more entrenched as we get older (I’m going to be an awful senior citizen!), and we just act the way we always have but, more so – this might explain the increase in this behaviour.
Sometimes people have these issues if they are having heart problems, not getting enough oxygen on a regular basis can make people stroppy! But that is not my area.
Good luck!
Sorry about the spelling errors!!!!!!
“What kind of health issue should I be watching for beyond psych issues?”
Well, after reading more about the things she has done in her life (the drama surrounding the thyroid, the moles etc) I don’t think you have to go beyond psych. What she is doing to you now it not new.
This is not likely to end well. My own grandmother pulls crap like this and has alienated the majority of her family. Her two kids (my dad and aunt) pretty much change places every so often with who is on her crap list and who is on her good child list. She is clinically depressed but refuses medication or therapy of any kind. It has lead to a lot of family drama over the years and I just don’t talk to her any more because it is not my problem and I have enough on my plate.
She seems to feed on drama and being the victim. I wonder if the lack of any legitimate drama in her life lead to just having to invent some? She was battling with her sisters over her mom’s estate for a long time, battling my great uncle over my other great uncle’s estate (these are my Dad’s uncles, not even her relation), and prior to that being a martyr to the cause of caring for my grandma (and battling her sisters, doctors, my grandma, etc over that). That’s about the last 10 years summed up. Nothing exciting has been going on the last six months. Maybe that is what started all this, life was just sailing too smoothly.
That is a very valuable piece of information right there–it sounds like she needs to be at war with at least one relative to feel happy.
I’m sorry you are going through this, Bomb. Your mother sounds exactly like my MIL… thrives on drama and will create it out of any situation just so she can play the victim. It sucks for sure!
” Mom claims Daughter “Never answers.” Which is false, and continues to refuse to call.”
False as in “almost always does answer” or false as in “often does not answer, but sometimes does”? Because if it is the second, it might be due to a generational thing. The older generation was raised to believe that it is rude to screen calls (e.g. even if it is not a good time to talk, you should still answer and at least tell the person that). For younger generations screening calls is totally normal and is not meant as an insult.
It is false in that my phone is in my pocket at all times, and when she made the claim I looked at my ‘missed calls’ and I hadn’t missed a single one from her going back as far as the log went.
Kinda sounds like Munchausen’s by proxy?
My mother is like this sometimes. She is manipulative in other ways too. But she didn’t used to be. The difference between 7ish years ago and now is that she is now undeniably an alcoholic. A possibility?
Can someone smarter elucidate for me whether “The copyright claim regarding this domain has a counter claim issued. If a counter claim is submitted, it will be up to the parties to pursue legal action” translates to BlueHost claiming it would take no action?
It seems to me that Bluehost is simply reiterating that the copyright dispute must be settled in court and not by BlueHost–they’ll do what the law tells them to do. And the law tells them that they will be immune from liability if they act to remove alleged infringing material once a DMCA takedown notice is filed. Once a counter-claim is filed and 14 days elapse without a copyright suit being filed, the material can go back up. Which is, I believe, what happened. However, a copyright owner can turn around and file a second (and a third, and a fourth…) notice, and the whole thing starts over again. Or the host can simply drop the customer because it’s too great a hassle.
Why are parts of Gina’s post covered with that zig-zag gap?
I have no idea, but I was curious as well.
I assume the point is to show that not the whole page is shown, only the relevant bits of it.
It’s like the squiggles on the y-axis of the graph to show that a big chunk of the scale has been skipped.
Oh, I always do that on screen caps to consolidate the important parts into one easy to handle picture while removing non-relevant parts of the cap. I assumed Dr. Amy was doing the same.
I used to collect Yiddish curses, which are really quite funny and charming. One of my favorites was “He should go to hell and make bagels!” (Bagel-making apparently is difficult) Another was (this from a woman, about men) “One man should have one baby.” And now I propose another: “He should pass the bar and have such a client!”
I’ve always said clients are the second worst part of the practice of law.
Right after other lawyers?
Exactly!
except for the part where the hosting site wrote a sworn affidavit that said the DMCA request had absolutely nothing to do with you being asked to move servers, why did you leave that little gem out? tbh, i’m with the guest above, i’ve been following this lawsuit closely and the more i read the more you both look like 2 very petulant children. and honestly, i’m a little skeeved out about what ive found out about you going after mothers who have lost their babies to homebirths gone bad. i’m sure you think you’re doing them a favor by highlighting their failures, but losing a kid is a p terrible thing without the internet hate machine harassing you. im not saying i agree with homebirth, or any of the shit that TFB sells, but lets be honest, neither of you look good here.
and to be clear, this is from the sworn affidavit from your previous host
“The decision to ask Amy Tuteur to move her website to another host provider was unrelated to the DMCA complaint filed by Ms. Gina Crosley-Corcoran. As I told Amy Tuteur at the time, her site was attracting more traffic than our service could accommodate, which was adversely affecting the other websites that we host.
To reiterate, though, my request that Amy Tuteur move her blog to another web hosting company was not because Gina Crosley-Corcoran had filed a DMCA take-down notice.
I was contacted on January 22nd. 2013 by one of Amy Tuteur’s lawyers and I explained to him the reason for asking Amy Tuteur to move her site to another provider.””
Who knows if they still would have asked SOB to find a new server if it weren’t for the DCMA drama? That’s what cross-examination is all about, and why this affidavit is far from the end of the story.
….except they wrote the move was unrelated to the DMCA, in a sworn. affidavit. i mean, its a sworn affidavit, and if the DMCA drama was the reason they asked her, they probably would have included it in the sworn affidavit. because its a sworn affidavit.
Fraudulent DMCA notice is still a fraudulent DMCA notice, which is still illegal.
right but she is arguing that the site asked her to move hosts BECAUSE of the DMCA notices, which the host has said did not happen, and wrote a sworn affidavit saying so.
You’re really fixated on the affidavit thing. The EFF is not a lightweight organization, and they’ve shown an interest in this lawsuit: https://www.eff.org/deeplinks/2013/05/eff-federal-judge-dont-let-dmca-be-tool-censorship
im sure they’re interested in it, DMCA notices are notorious for suppressing 1st amendment rights. im sure they’re interested in the precedent it might set in regards to the onus being on the person sending the DMCA to show that what they want taken down isnt being used under the “fair use” clause. i’m also interested in why people seem to think a host would perjure themselves for the likes of TFB.
Because they are in the business af attracting people to use their service. If they go on the record saying they ask clients to leave anytime they get a DMCA notice, at least some potential clients are scared away, because frivolous DMCA notices are issued all the time. The way the aff reads now, it sounds like the blog got more traffic than the host expected; future clients need only provide optimistic estimates of their server needs to enable the host to provide adequate services.
I think the host would skirt the truth in order to have a court case that would be an expense and hassle to him not continue. He may have been defining “related to the DMCA” as “required by the DMCA.” The DMCA did not force him to cancel his contract with Gina. Even in the affidavid he does admit that his decision was partly based on worry that the fight between Gina and Dr. Amy would overflow onto his business.
The first site DID boot her because of them. There were TWO.
I do think the host has at least called into question that this was the reason, but it would be wrong for the judge to determine if the host’s explanation disproves tortious interference. A jury needs to decide that. I would be surprised if the judge dismissed it at this point.
Exactly^^
I disagree.
lol ok
I mean I disagree with the weight you give an affidavit.
The great advantage of an affidavit is that you don’t have to explain or justify anything you’ve said in it unless the case proceeds to discovery, and if the affidavit helps get the case dismissed at the motion stage, discovery will never take place. If the affiant ever has to testify, I think we’ll see some amazing contortions as s/he re-defines the term “unrelated.” As rabbit pointed out, it’s bad for business if a host admits, “Oh, sure, we melt like a chocolate teapot at the sight of a DMCA notice, however bogus.”
Whoa whoa whoa. Are there not sanctions for “contortions” in an affidavit?
Not really. No AUSA is going to pursue perjury charges for a misstatement in an affidavit in a purely civil suit, and the court is unlikely to pursue anything against a non-party absent some really egregious behavior. Word smithing is almost expected in an affidavit. That’s why courts tend not to make final decisions based on them.
Oh, it’s perjury if it can be proved that you flat-out lied. But a nimble witness can explain that s/he was using the term in a different sense, that “unrelated” has various meanings depending on context, that it isn’t appropriate to define it broadly when I meant it narrowly, etc., etc. Even if the host really did ask Dr. A to leave because of the sudden upsurge in her traffic, that spike was almost certainly due to the take-down flap bringing in all the TFB faithful, and then the IP mavens, as well as the regular readers. To my mind, that’s all “related” but you can bet the host would utterly reject that interpretation.
Indeed, and Esposito is fairly cagey in the e-mail he sent directly to Amy in that he never comes right out and says it’s because of takedown notices or other complaints, but the implication is pretty clear when he directs her to other “free-speech-friendly” off-shore hosts.
You sound like that AT&T commercial with the guy interviewing the kids, and the girl goes, ” More is better than less because if stuff is not less… if there’s more less stuff then you might, you might want to have some more and your parents just don’t let you because there’s only a little.
Man: Right.
Girl: We want more. We want more. Like, you really like it. You want more.”
Reading this made me choke on a baby carrot.
HAHAHAHAHAH!
I hate that commercial. Every time I see it I think, “That kid is going to become Miss Teen South Carolina explaining why Americans can’t find the USA on a map.” Utterly cringe-inducing.
LOL. I live in SC (not native) and I’m pretty sure I got out of a serious ticket when the policeman looked at my license and said “South Carolina?” This was just a few weeks after that pageant debacle. He yelled at me but did let me off without a ticket. BTW, I would have deserved the ticket – it was one of those oh-oh moments when I thought I could get through an intersection before the light changed, but ended up stopped on the metro tracks, right in front of a cop.
Bree, a sworn affidavit is not the big deal you think it is.
Is it about whether Dr Amy was asked to move by the host, or whether Dr Amy had to move to a host that was going to pull down her site every time someone filed a DMCA against her? Different hosts might have different policies.
Well, the host didn’t have to ask her to leave for good to meet the requirements of DCMA, she just had to have had her service disrupted. The defense seems to confuse this with the separate issue of damages. One theory of damage set forth by Dr. A is the tortious interference with her contract, which would require it to be shown that that’s why Dr A was kicked off, but that’s not the only damages theory she has to lean on.
And why was she removed from her first server which she had for years? Because they had shut down her blog. Because of Gina’s actions it is STILL her fault that the second server could not host her as well because had she not gotten Amy kicked from the first, she would not have needed to seek another. This law suit is not about Dr. Amy being removed from her server, it’s about Gina filing false DCMA complaints in an attempt to have her blog shut down, which is Gina attempting to violate Dr. Amy’s freedom of speech by using the law to silence her. IT’s a little more than what you are saying…by a long shot.
I may be getting my facts confused, but did Dr. Amy actually say in her court case that she was forced to switch hosts due to the notice?
Even if the notices were not the cause of her switching hosts, they did result in her site being temporarily disabled twice all because Gina didn’t like what she was saying and so wanted to take away her ability to say it. I thought that was what the case was about.
You did not include the full reply from DaringHost
“”I also mentioned to Amy Tuteur that I was concerned that continuing to
host her site presented risks to my business. Although I did not go into
the specifics with Amy Tuteur (other than specifically telling her my
concern that her site was pulling too many resources from my servers),
my concerns included other customers leaving my company because her
website was causing server issues from the high amotmt of traffic
visiting her website; the potential for her website to be attacked or
hacked_ which could-“would cause issues and downtimes for customers on
the same server; and the obvious conflicts between Amy Tuteur and Gina
Crosley-Corcoran and my fears that those conflicts might somehow
spillover on my company.”
It’s not at all a stretch of the imagination for a jury to conclude that Gina’s actions added up to tortious interference.
In what way is Dr Amy “going after” the mothers? She posts blog entries here. She doesn’t seek them out, force them to read anything here, send letters to their homes, or anything like that. I doubt anyone thinks she’s doing the loss parents a favor, but that’s not the point. The point is preventing that harm from happening to additional people.
Harassment requires more than posting something on a blog.
The mothers have also posted this on the world wide web. Watching how Gina is getting treated once she steps outside of the bubble on the internet that she has created for herself I suspect these mothers would attract much, much more abuse from strangers on the internet. The thing is the strangers on the internet don’t particular care to bring attention to careless midwives and aren’t interested in preventing other babies from dying because of their mothers making decisions based upon misinformation and wishful thinking.
If only Gina could cherry-pick from the affidavit like you have. Unfortunately for her, she’ll have to include the whole thing.
I haven’t been following this extremely closely. Frankly, I thought the lawsuit posts were boring and I was losing interest in the rivalry between these two blogs. But, in all fairness, I just wanted to ask: Did you use her picture? Is it allowed? I’m not accusing you of anything, I’m just asking. Why these 2 blogs, out of all the blogs on the net?
The judge said it almost certainly was allowed for Dr A to use the photo.
wat, where is that? per the ruling “”As a rule, a court will determine whether Article III jurisdiction exists before reaching the merits of a plaintiff’s claim. But if the merits can be readily resolved in favor of the party challenging jurisdiction, complex jurisdictional questions can be avoided. This is such a case.”
Putting aside the thorny issue of internet-based personal jurisdiction, in reviewing the exhibits attached to the pleadings, the court seriously questions whether Tuteur has stated a viable cause of action against Crosley-Corcoran. The takedown notice at issue appears to conform to the letter of the requirements of section 512(c)(3) the DMCA. In it, Crosley-Corcoran states accurately that her likeness has been copied without her express authorization and published by Tuteur without permission on her SkepticalOB website.”
“Tuteur’s tortious interference claim would also seem vulnerable on similar grounds. The Complaint alleges that Crosley-Corcoran by causing BlueHost to remove her photograph from Tuteur’s blog site “[was] acting with improper motive and/or improper means in causing harm to Dr. Amy [Tuteur] and preventing her exercise of contractual rights.” Here, there would seem nothing improper about the purpose of Crosley-Corcoran’s takedown notice, which was to stop what she believed was an infringement of her copyrighted likeness, while the means that she chose, sending a the notice to the service provider, was one explicitly authorized by the statute.””
Go away. You fail at reading comprehension. The judge stated outright posting the picture was fair use, and anyone with even the thinnest grasp of the law understands that even without him saying so.
“It is true that if the tables were reversed, and this was a lawsuit brought by Crosley-Corcoran against Tuteur for copyright infringement, Tuteur would have a plausible, and even dispositive fair use affirmative defense[.]” April 10, 2013 Order, pp. 5.
Do you need the definition of “dispositive” or will that do it for you.
ok i must have missed that part, MIA CULPA. BUT, it also says that there was nothing improper about her DMCA claims, which is why they gave her another 21 days to show cause.
Better lawyers than the judge’s career clerk disagree with their interpretation of the DCMA claim. Being a lowly bar applicant as of yet, I will defer to the experts on the DCMA jurisprudence. It does seem likely though that the judge’s reasoning in the preliminary ruling would not stand up on appeal, based on my understanding of the 9th cir. line of DCMA cases.
Other professional observers have disagreed with the court’s opinion and have expressed strong confusion that the court decided that the DMCA claims were not improper. Just because one judge makes a ruling doesn’t mean that that’s the correct answer. You do understand that things get overturned on appeal all the time, right?
i also know that some dont get overturned on appeal even when “professional observers” disagree.
While true, that is irrelevant to my argument. My point about professional observers is that I’ll trust their opinion over any lay observer.
Mea culpa?
Missing-in-action culpa. Applicable to many harms in this elaborate e-battle.
I was wondering who Mia was and why it was her fault 🙂
She used the picture, but it was definitely protected under fair use laws.
It sounds like her lawyer doesn’t understand or is intentionally muddying the waters about what “take down” means.
Gina is claiming she had nothing to do with SOB needing a new host, but obviously there were takedowns related to her copyright claim.
Well, the previous ruling suggests that the judge is willing to take her at her word, so why not?
The judge must take any plausible assertion of Dr. A’s as true.
Hm. Well then what’s the point of Gina filing anything that challenges the facts as Dr Amy presents them?
Well, if she can show a claim is not plausible, she may avoid proceeding to trial.
Okay, but how can it be reconciled that anything plausible Dr. Amy says has to be taken as true, and yet Gina can challenge her on whether it is true? Is it just that the amount of evidence Gina would have to marshall to show that Dr A’s story is NOT plausible is prohibitive?
Well, the way I stated the law is more of “in an ideal world” than “in practice.” But you can see, for example, that in Gina’s response, her lawyer points out that Dr. A relied heavily on certain affidavits, therefore those should be considered by the court at this stage. That’s a marker of this procedural rule: the court basically must view the facts in a light favorable to Dr. A. If Gina could find a flaw in Dr. A’s reasoning or presentation of the facts that would bring the whole thing to a screeching halt, that’s pretty much the only way the judge can toss it (in an ideal world).
Dr. Amy should be able to show traffic data before and after the post with the finger picture.
there most certainly is, which is why i am like, wat? the host as apparently written a sworn affidavit that says the DMCA was not the reason why she was asked to move hosts. has anyone ever entertained the idea that gina was taking credit for the downed blog to pump up her own ego? i mean, is that such a stretch?
No, it certainly isn’t a stretch, and it’s even likely. The question is, was the decision to take down SOB even in part due to the DCMA inconvenience? Does the host have any reason to want to suppress that information? Believing the claim of the host is not the job of a judge, it’s the job of a jury (the factfinder).
im actually interested to see if it even gets that far, i am NAL and the legalese is a little confusing, but it seemed like the courts werent too impressed by her claims before this, and im wondering if they will be even less so after this. guess we’ll all just wait and see.
I don’t know how far Dr. A is willing to take this, but I agree with you that the district ct judge doesn’t seem inclined to decide in favor of Dr. A. I think she will fare far better in the COA, should it go there, simply because the judge’s interpretation of the DCMA seems, frankly, bizarre.
a lot of things some court judges have done lately seem bizarre. AMERICA
I ANAL either, just a layman with a particular interest in IP law, but if I were a bettin’ woman, I’d bet that that’s what the ACs were all about.
I am a lawyer, though not an IP lawyer, and I agree with you, Squillo. The Judge’s earlier opinion has a distinct flavor of “Girls, girls! Can’t you settle your little cat fight without taking up the time of this important court?” His weird application of the DMCA to the facts (and misrepresentation of some of the facts, as well) may have raised real concerns among the amicus folks that this judge did not intend to address the substantive issues presented.
It reeks of sexism. If this were two men I think we’d see a different take on it, sadly.
I suspect it’s also being seen as two hobbyists instead of two businesses.
Two women discussing WOMEN THINGS.
And now that the MPAA has gotten involved, I’m doubling down. I wonder if they’re going to offer to do a pro-bono for the defendant should this move forward.
That’s the affadavit from the second host. The first exhibit is an e-mail from the first host’s legal department telling the two parties that it would have to be settled in court. I’m not sure I buy Croseley-Corcoran’s argument that that’s equivalent to saying they wouldn’t remove the content or shut down the blog, in the interim, which they had apparently done once already.
In other words, Gina has herself put forward two mutually contradictory versions. One (at least) is necessarily a lie. Gina would have us believe that the version that is most prejudicial to her defence is the one that is the lie and the one that favours her case is the truth. Convenient. Can you not see how that might appear less than convincing? It’s never comfortable to have to base your defence on the admission that you’re a liar, all the more so if you’re trying to paint your opponent as dishonest.
she must have forgotten that she wrote this BEFORE she closed off her site . How silly that she didn’t realise you would take screen shots ! OOps indeed
She’s a mess.
ROFLMAO!!!!
When caught, change your story. Oh wait, you remembered what I said the first time?
I totally remember that and I also remember her saying that this will keep happening as long as her picture is up. HAHAHAHAHHAHAAH