A Boston federal judge has kept alive a copyright case that sprang from a bitter dispute between two bloggers on opposite poles of the home birthing debate.
U.S. District Judge Richard Stearns on Tuesday denied blogger and doula Gina Crosley-Corcoran’s bid to dismiss former doctor Amy Tuteur’s case.
The case filed by Tuteur, who initially was represented by her husband, Foley & Lardner litigation chairman Michael Tuteur, claims that Crosley-Corcoran violated the Digital Millennium Copyright Act.
Filed in the January in the District of Massachusetts, the lawsuit alleges that Crosley-Corcoran ran afoul of the act by falsely claiming that Tuteur’s blog posts constituted infringement. The lawsuit also claims that Crosley-Corcoran tortiously interfered with Tuteur’s contractual relationships with her Internet service providers.
The litigants initially sparred through their respective blogs, Crosley-Corcoran’s TheFeministBreeder and Tuteur’s The Skeptical OB. Tuteur stopped practicing medicine in 1995 to raise four children, according to her complaint.
In December 2012, Tuteur published an article about the risks of home birth with critical and rhetorical questions directed at Crosley-Corcoran. After that, Crosley-Corcoran posted a photo of herself flipping the finger with the statement that she was giving Tuteur “something else to go back to her blog and obsess about.”
Tuteur reposted the photo of Crosley-Corcoran and her statement on her own blog without Crosley-Corcoran’s permission.
Crosley-Corcoran hired a lawyer to send a cease-and-desist notice that accused Tuteur of copyright infringement. The notice demanded that Tuteur take down the photograph. At the same time, Crosley-Corcoran filed a “takedown notice” under the digital copyright law with BlueHost and Tuteur’s subsequent web service provider.
In her motion to dismiss, Crosley-Corcoran asked the court to throw out Tuteur’s lawsuit on the ground that Crosley-Corcoran is an Illinois resident who lacks the required minimum contacts with Massachusetts for jurisdiction.
The Electronic Frontier Foundation and the Digital Media Law Project at Harvard University’s Berkman Center for Internet and Society filed amicus briefs in support of Tuteur’s lawsuit.
The Motion Picture Association of America Inc. filed an amicus brief stating that it specifically supported neither party. The brief argued that liability for the digital copyright law’s misrepresentation provision, which Tuteur’s lawsuit relied upon, should require proof that a copyright owner knew that he or she was making a material misrepresentation of infringement.
The judge, in refusing to dismiss the case, first found that although Crosley-Corcoran’s cease-and-desist letters weren’t enough to establish personal jurisdiction in Massachusetts, the fact that she invoked the digital copyright law’s takedown process established enough contact to meet the standard.
Regarding Tuteur’s assertion that Crosley-Corcoran violated the copyright law by falsely claiming infringement, the judge determined that that Congress must decide whether the digital copyright law’s section allowing such claims to combat takedown abuses unduly favors copyright owners.
“If experience ultimately proves that the remedy is weighted too heavily in favor of copyright owners at the expense of those who seek to make “fair use” of another’s intellectual property, the resetting of the balance is for Congress and not a court to strike,” Stearns wrote.
Michael Tuteur said via email that Beck Reed Riden of Boston now represents his wife. Beck Reed’s Stephen Riden said, “Dr. Tuteur does not believe that individuals and institutions should have safe haven to muzzle their critics by literally chasing them off the Internet using bogus takedown notices.”
He went on to say that for her, “this is a case about censorship and her effort to stop an attempt to force her blog off the Internet.”
Crosley-Corcoran’s lawyer Evan Fray-Witzer of Boston’s Ciampa Fray-Witzer said the judge agreed with his team’s substantive argument, that the proper test under the digital copyright law’s misrepresentation section “is whether the copyright holder had subjective good faith in sending out the takedown notice.”
Sheri Qualters can be contacted at email@example.com.