Lawsuit update #11: legal analysis


I’ve been somewhat remiss in posting updates, but I’ve had good excuses. Last week I was in Maui, speaking at the ACOG district conference. Then I took the red-eye to the West Coast to attend my son’s wedding, which was awesome.

In the interim, there have been multiple articles about the lawsuit. Mass Lawyer’s Weekly featured it on the front page, in conjunction with a similar lawsuit brought by Harvard Law Professor Lawrence Lessig, a noted authority on copyright: Cases Promise Clarity on Takedown Notices.

Two federal suits in Boston … are expected finally to answer the question of how much good faith a copyright owner must have before issuing a takedown notice under the Digital Millennium Copyright Act.

Lessig’s complaint, which is pending before U.S. District Court Judge Nathaniel M. Gorton, raises the same issues of first impression addressed last week by U.S. District Court Judge Richard G. Stearns in Tuteur v. Crosley-Corcoran, a copyright case brought by a former clinical instructor at Harvard Medical School.

Why did Prof. Lessig file his lawsuit?

Lessig’s suit concerns a keynote address he delivered in 2010 at a conference in South Korea. The lecture was about cultural developments in the age of the Internet. During the discussion, Lessig showed portions of a copycat video phenomenon that involved computer users around the world posting music videos of the song “Lisztomania” by the French rock band Phoenix. Lessig, the founder of the Stanford Center for Internet and Society who is an outspoken advocate for fewer copyright restrictions, put the lecture on YouTube. In response, the band’s Australian record company, defendant Liberation Music, sent him a takedown notice threatening to sue him for violating its copyright. YouTube took the video down, but Lessig and his lawyer … responded by filing suit under Section 512(f) of the DMCA. Co-counsel Daniel Nazar of the Electronic Frontier Foundation said Lessig’s academic lecture was “so clearly a fair use” that the record label’s takedown notice amounted to a knowing misrepresentation.

Daniel Nazar of the Electronic Frontier Foundation explains why they filed an amicus brief in support of my position:

Although Tuteur’s case involves a dispute over home-birthing, Nazar said, it raises important questions about the standard of proof needed to issue takedown notices, which is what prompted his brief and an opposing one from the Motion Picture Association of America.

“The MPAA doesn’t want to have to consider whether something is authorized by law before they seek to remove it from the Internet,” he said. “That’s a really big problem for free speech because placing the onus on the speaker to defend their critical content is not how it should be, and it is not what the law requires.”

On Monday, September 30, Mass Lawyers Weekly published an editorial on the cases, Takedown cases provide opportunity to clarify law:

The cases have received a significant amount of media attention because the objects of the takedown requests are well-known individuals with the wherewithal to fight back. Most people hit with such a notice can’t afford to get into a legal battle and simply cave.

Unfortunately for Liberation Music and Crosley-Corcoran, Lessig and Tuteur are not only prepared to litigate, they’re also prominent enough to attract amici support. In Tuteur’s case, a joint brief was submitted by the Electronic Frontier Foundation, the Digital Media Law Project in Cambridge and Harvard’s Cyberlaw Clinic.

The bad news for these defendants is good news for attorneys seeking to know where the lines should be drawn in a complicated area of the law. Currently, the correct standard is unclear: While
copyright holders must have a reasonable and articulable basis for sending a takedown notice, there’s a lot of uncertainty over what constitutes sufficient cause.

Now, because Lessig and Tuteur have stepped up, the end result could be welcome clarity where there has been little guidance.

The next step in my lawsuit is discovery, which involves reviewing documents and taking depositions. That phase must be complete by February 7, 2014.

43 Responses to “Lawsuit update #11: legal analysis”

  1. J_in_the_Lou
    February 12, 2014 at 3:23 pm #

    The above post states discovery was to be completed February 7. Can you give an update?

  2. .
    October 20, 2013 at 1:19 pm #

    you have blood on your hands.

    • October 20, 2013 at 1:41 pm #

      How so?

      • Karen in SC
        October 20, 2013 at 11:02 pm #

        yeah, wonder what’s that all about?

        • Amazed
          October 21, 2013 at 5:58 pm #

          Hey, does someone else see the original comment as “awaiting moderation”? I see it but I can click on it and read.

          Weird. Not what I see on other sites by the way of moderation – I think we all know which ones I mean.

          • kumquatwriter
            October 21, 2013 at 7:29 pm #

            I see the moderation comment too. I’ve only seen that happen once before here, and it looked pretty clearly like a spam filter issue. Perhaps its the username “.” tripped the system?

          • .
            October 21, 2013 at 7:31 pm #

            This is kumquatwriter – testing to see if using “.” as a username makes the comment display oddly.

          • Amazed
            October 21, 2013 at 8:13 pm #

            No, I see it just like a guest comment. No moderation comment.

  3. Rebecca
    October 9, 2013 at 8:51 pm #

    I’m tickled by the Mass Lawyers Weekly comment that you’re “prominent enough” to attract amici support. That must chap Gina’s hide. But they seem to have forgotten to place a few quotation marks, to wit:

    …a copyright case brought by a former “clinical instructor” at “Harvard Medical School.”

  4. Amy Tuteur, MD
    October 9, 2013 at 10:42 am #

    “If Tuteur cannot meet the standards for sanctioning copyright misuse, it’s unclear whether any DMCA victim can.”

    • KarenJJ
      October 9, 2013 at 10:53 am #

      Finally someone has managed to write an article without describing the fundamental disagreement as ‘petty’ or ‘even though it was a squabble about birthing methods, the case is actually important because’..

      • The Bofa on the Sofa
        October 9, 2013 at 11:01 am #

        I agree. That is a great article. A great, balanced discussion of the case and the issues involved.

      • SomeSense
        August 3, 2014 at 2:50 am #

        but they do have “The two continued to squabble”…that bothers me as I have seen the word ‘squabble’ used mostly as meaning argument over something ‘petty’ (&usually for arguments involving women)

    • anonymous
      October 9, 2013 at 12:14 pm #

      Does this mean that the case is over?

    • Rebecca
      October 9, 2013 at 8:58 pm #

      The line “The ruling also may be unconstitutional” sent shivers up my spine. Anyone itching for some Supreme Court action?

  5. Anonymous
    October 4, 2013 at 12:06 pm #

    Let’s see how much Gina uses the “I forgot…I didn’t know” BS. Let’s see how the birth nutters spin this one.

    Interesting that there doesn’t seem to be any $$ coming forward from MANA or anyone else to help Gina fight this one.

    • anonymous in chicago
      October 6, 2013 at 10:02 pm #

      Well, I think it is safe to say Gina hasn’t been making too many friends in the birth professional scene in her area, that’s for sure….

  6. Anna C
    October 4, 2013 at 10:34 am #

    Does Australia have a ‘fair use’ exemption? The UK does not.

    • KarenJJ
      October 4, 2013 at 7:14 pm #

      I didn’t think we really had one. Not to the same extent as the US does. At uni we were warned against photocopying more than a chapter of a book, and in terms of owning a CD or DVD you are not meant to copy it at all – even for personal use. Ipods and Itunes were meant to be problematic because you could copy between different formats. I don’t know much about the legalities though.

      • Squillo
        October 4, 2013 at 9:48 pm #

        Ya’ll have “Fair Dealing” in the UK, Australia, and Canada, which is similar, although I don’t know enough about it to say how analogous it really is to U.S. Fair Use.

        • Anna C
          October 6, 2013 at 6:03 am #

          In the UK there is no ‘fair use’ exemption from copyright law. You can quote for the purpose of critique and you can create parodies. It would have been fine to show illustrative “Lizstomania” videos during the lecture but putting them on YouTube (even as part of the recorded lecture) would have been a breach of copyright in the UK. I’ve been to several ‘copyright in the digital age’ training sessions and all have emphasised that the UK does not have the same ‘fair use’ rules as the US.

          • KarenJJ
            October 6, 2013 at 7:19 am #

            I wonder how it will work then, if Australia is similar to the UK (I don’t know if it is, but I suspect that at the least we have some pretty significant differences with the US), would the copyright infringement be treated as an infringement against Australian law or US law. I’ve no idea.

          • Squillo
            October 6, 2013 at 12:19 pm #

            Yes, thanks. My hazy recollection was that criticism and certain educational uses are covered under Fair Dealin, but that’s about the extent of my understanding. It will be interesting in Lessig to see which set of laws obtain.

  7. violinwidow
    October 3, 2013 at 9:52 pm #

    Congrats on your son’s wedding!!

  8. yentavegan
    October 3, 2013 at 9:35 pm #

    Mazel Tov on your son’s marriage.

    • Amy Tuteur, MD
      October 3, 2013 at 9:43 pm #


      • Dr Kitty
        October 4, 2013 at 3:48 am #

        Sounds like a wonderful few days, glad you got some time to relax with the family.

    • Antigonos CNM
      October 3, 2013 at 11:15 pm #


  9. WhatPaleBlueDot
    October 3, 2013 at 6:11 pm #

    I’m so tired of the handwaving “oh look, this case is important even though it just started over a stupid woman issue.”

  10. Jeffrey Bell
    October 3, 2013 at 6:04 pm #

    There is one aspect to this case that these excerpts do not mention is that it could not possibly been just a mis-understanding of fair use.

    Although one might mistakenly file DMCA notices, it’s a whole different level to recruit others to also “mistakenly” file as well..

  11. moto_librarian
    October 3, 2013 at 4:50 pm #

    I almost feel sorry for the idiots that decided to file the original suit again Lawrence Lessig. Almost.

  12. October 3, 2013 at 4:49 pm #

    Happy to hear of the progress. Justice may be slow – but that is because it is the direct opposite of a CPM – educated and rigourous.

  13. Me
    October 3, 2013 at 4:45 pm #

    Love it!

  14. Monica
    October 3, 2013 at 4:45 pm #

    February 7, 2014 over a year after originally filed. The wheels of justice sure do move slow.

    Really can’t wait to see what Gina presents in discovery after the litany of paperwork she has filed just to try to dismiss.

    • stenvenywrites
      October 3, 2013 at 8:50 pm #

      She has very little to present, I’m afraid. She has left an unfortunate paper trail.

      • Certified Hamster Midwife
        October 3, 2013 at 11:26 pm #

        Pixel trail, officially.

        • Laura Thomas
          October 4, 2013 at 12:16 am #

          totally OT: is that a hamster as your picture?! Hilarious! I’ve been remiss on this blog because nursing school is taking a whole lot of time! Interestingly, one of my nursing school classmates, who is sweet and smart, is a CPM who had some “holes” in her CPM training. She wants to become an RN then a CNM to be, well, legit and have hospital privileges for home births and smoother transfers of patients if need be. Interesting…

          • Dr Kitty
            October 4, 2013 at 3:50 am #

            Bet your classmate is realising pretty quickly that she knows less than she thought she did…

          • Zornorph
            October 4, 2013 at 4:03 am #

            Hey, all she really needs is ‘mama wisdom’. They can’t teach that in school.

          • Laura Thomas
            October 4, 2013 at 3:48 pm #

            We’ve only been in nursing school for about 6 weeks. Our OB rotation is next semester. Interestingly, a birth center opened not far from our school. It seems that no nearby hospital is designated to take transfers and there aren’t any close by doctors to provide back up care either. She didn’t seem really bothered by this, but I found it horrifying. I do try to keep my opinions about home birth to myself around others who might not agree because I have nothing to prove and I won’t argue about things that aren’t relevant to me at this point in my career. Besides, I really do like her and I know that I can learn things from her, too.

          • Happy Sheep
            October 4, 2013 at 9:21 pm #

            Report back with what she “knows” and see if she changes her mind after the OB rotation

          • anion
            October 20, 2013 at 7:02 pm #

            Best of luck with school! My mom is an RN (ER): she went to nursing school when I was ten, and I spent hours quizzing her and listening to her taped notes in the car (she was working as a RMA when she went to nursing school, and would record herself reading all of her notes to listen to in the car so she could get extra study time).

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