Lawsuit update #9: going to court


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.