Copyright As Censorship: Birth Blogger Fight Goes Legal Over DMCA Abuse

from the wtf dept

We’ve talked in the past about DMCA abuse to silence criticism, but it appears that a blogger, who felt wronged by someone who slightly mocked her, took DMCA abuse to new levels and is now facing a lawsuit in response. This case is interesting (and crazy) on a whole bunch of levels, which we’ll try to illustrate here. Jackie points us to GetOffMyInternets, which has a pretty good summary of the long series of events that resulted in the lawsuit. Let’s start with that summary, and then dig in on a variety of levels. The dispute involves two bloggers who appear to absolutely hate one another, Amy Tuteur and Gina Crosley-Corcoran:

OK, so Gina wrote this post about how she’s learned soooooooooo much after being a doula at 20 births.

Dr. Amy responded with this post, basically saying, “If you’ve learned this much after 20, what do you think you’d learn after a few thousand?” It really wasn’t terribly mean, by Dr. Amy standards.

Gina then responded with a photo of herself flipping Dr. Amy the bird, and saying, “I don’t want to leave you without something you can take back to your blog and obsess over, so here’s a picture of me.”

Dr. Amy then wrote about it (and included the photo, which is now gone) in this post.

Gina THEN proceeded to scream “Copyright infringement!!!!” and send Dr. Amy a letter demanding money, which she wrote about in this post. (The letter was originally posted but later deleted.)

Dr. Amy’s husband, who is a very big-deal lawyer, wrote back to Gina and told her she didn’t have a case. Gina then repeatedly filed DMCA takedown notices to Dr. Amy’s host (and then her new one, after she switched hosts), which she detailed here. She also started a legal fund so she could go after Amy. It was VERY clearly an attempt to abuse DMCA in order to shut Amy up. Gina was also encouraging other people to fill out forms saying that Amy had “stolen” (aka quoted, with proper citation) their stories.

Then, Dr. Amy countered with this suit

Phew! That’s a lot of stuff. You can see the actual lawsuit here if you’d like (and it’s also embedded below). I will say that prior to getting this, I’d never heard of either of these women, and I have no idea what the real crux of their dispute is about — though it’s quite clear that there’s a much bigger history going on between these two women prior to the events listed above. In the post showing the middle finger picture, Gina describes a long history (in, um, snarky terms). Either way, one or both of these women may have wronged the other at some point. I have no idea, nor does it really matter concerning the specific events above.

Reading the blog posts back and forth (which isn’t as easy as clicking on the original GOMI links, because Gina has blocked any traffic coming from that site with a message listing two possible reasons you’re getting the blocked message — with the first one being the likely issue: “you clicked on a link to my site from a really, seriously effed up place on the internet, in which case, for real? Why are you hanging around such places? Nevermind, ick, I don’t wanna know.”) I’m obviously not going to get into the long term fight the two are having over birthing methods or education — but on the copyright issues, it seems fair to weigh in.

It’s pretty clear that Gina way, way, way over-claimed things in her original blog post alleging infringement. She makes it sound as if Dr. Amy is guilty and must pay up, solely based on the accusation. She also claims that because her host has been contacted, they have to take down the content. Neither claim is true or accurate (it’s possible she got questionable legal advice here):

By law, Amy now owes me $750 per incident, and up to $30,000. Think twice before stealing things off people’s blogs. In case you’re wondering, that is a VERY serious offense…. Her host has also been contacted, and by law, they must remove the content.

No, by law, Amy is not required to pay up until a court decides she has to. Also, copyright infringement is not stealing, but that’s a whole different fight. As for the host being contact, they do not have to remove the content by law, though there are very strong incentives for them to remove it. Of course, those incentives apply solely to the content in question, and not the rest of her content. However, the host (apparently Bluehost) ridiculously killed the entire account, which Gina celebrated. Celebrating outright censorship through abuse of the DMCA doesn’t seem wise. Amusingly, in cheering it on, Gina posted a screenshot of the blog being down, with a giant “protected by” sticker on it — which is highly questionable. She really does appear to be claiming a copyright over a screenshot of someone else’s website (even one that’s been taken down). That’s also highly questionable — especially for someone who was just arguing that you shouldn’t be “stealing things off people’s blogs.” And yet, she has no problem taking a screenshot of someone else’s blog? Hmm…

As for the use by Amy of Gina’s photo… it would appear that she would have a very, very strong fair use claim. She did not just use the photo, but provided significant commentary (again, whose commentary you agree with is meaningless here). Also, as claimed in the lawsuit, Amy argues that Gina’s claim that she posted the photo for Amy to “take back to your blog and obsess over” is actually an invitation to repost the image. That last part may be a stretch, but not a completely ridiculous stretch. It just feels like the fair use claims are a lot stronger.

In fact, Gina later talks about her real goal in all of this is to use the threat of a DMCA action to silence Amy. I’m not sure who Gina’s lawyer is, but you’d think he or she would tell Gina that flat out admitting publicly that you’re seeking to use the DMCA to silence someone who is criticizing you and others is an abuse of the DMCA:

She could owe me statutory damages, but because I’m a fair and reasonable human being, my attorney and I felt it was best to discuss a non-monetary settlement with Amy and her lawyer. I’m not looking to be greedy — I simply wanted a resolution. In exchange for me not pursuing the damages, we wanted Amy to agree to stop personally attacking me. It was that simple.

That is, Gina flat out admits that she used the DMCA as a tool to seek to silence Amy’s criticisms. That’s not going to go over well in court. And, that’s where some of this is playing out.

The lawsuit reveals even more info, including the claim that part of the “settlement” offer was that both Gina and Amy would agree never to discuss each other again in blog posts. It also states that Gina’s own attorney admitted during a phone call that there was no legitimate copyright claim, and that they would not be pursuing any actual legal action. Furthermore, it reveals that after Bluehost had received the initial notice, Amy had filed a proper DMCA counternotice.

Next, she notes that in the most recent blog post on this, Gina not only solicited money for a “legal fund” to fight Amy (despite her lawyer apparently already saying they had no legal claim), but also encouraged her readers to “report” other instances of believed “copyright infringement” by Amy. A few days later, Amy got another takedown notice from Gina, directed at her new host, DaringHost (whom Amy had moved her blog to in the middle of all of this). Amy submitted a second counternotice.

Following that, Gina started posting on Facebook excitedly, implying that she was “spending” the “legal fund” to takedown Amy’s site on the new host. Furthermore, she noted: “if she keeps on doing what she’s doing, this will keep happening,” which could certainly be read as a threat to keep sending DMCA notices over and over again.

So…. what’s the lawsuit actually about? Amy argues that Gina runs afoul of the infamously weak “misrepresentation” clause in the DMCA (also known as 512(f)). We’ve discussed just how weak this part of the DMCA is, but if anyone has a case of someone falling on the wrong side of 512(f), this might be the case — which makes it especially interesting. The filing is pretty clear on how and why Gina’s takedown notices were a clear misrepresentation, and that Gina knew or should have known, that they were being filed in bad faith (her own admissions on the blog seem to admit that).

Separately, the filing argues tortious interference with contracts concerning the two hosting companies. The argument is that since the DMCA notices were filed in bad faith, it rises to the level of tortious interference.

If this case actually goes forward, Gina may regret jumping so eagerly into the claims of copyright infringement as the weapon she tried to use to silence a critic. It certainly looks like Amy has a pretty strong argument, given Gina’s own statements. Oh, and if you want to see the picture with the middle finger, despite Gina’s aggressive claims of “copyright,” the image itself was (obviously) included in the actual filing, so it’s now a matter of the public record, which you can see below.

Again, I don’t care much about the initial and ongoing argument the two are having over birthing methods. I don’t know or care who is right (though, it’s quite interesting to see the different tones and argument styles used by the two). But, on the copyright front, this one seems like a pretty clear cut case of trying to abuse copyright law to silence a critic, and that’s a big no no.

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Comments on “Copyright As Censorship: Birth Blogger Fight Goes Legal Over DMCA Abuse”

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Ninja (profile) says:

Hosts should never take action on DMCA notices. They should forward and request a counter-notice giving proper time for the uploader defense which then should be forwarded to the rights holder. Next the holder should have to go to court if they still thought they were right.

Copyright lacks due process. Maybe not at it’s conception but that’s how it works today, the content is taken down before a proper ruling can be delivered by a court. I don’t (usually) see police raiding and seizing first then going to the judge later with very few and specific exceptions. (I am aware the US Govt seems to love warrantless seizures but I’m gonna keep this to the word of law which the US Govt often disrespect themselves).

Anonymous Coward says:

Re: Re:

It is not copyright in itself lacking due process. It is the enforcement of DMCA that is abysmal on the due process front.

It would seem to be a good idea to stop the meaningless back and forth filings at one from each side and let the counternotice open up for injunctions if the original DMCA sender wanted it to be taken down. Problem of this solution is: Who pays? Nobody has the money invested on the DMCA-part of the internet, so nobody wants a dispute to go to court! It is very unfortunate that politicians stretch the rights of the rightholders to completely unacceptable lenghts to compensate for the lack of international consensus. The lack of international consensus is a problem of money. It is expensive to keep feeding the litigious system with too many cases! Only where enough money are bound in IPR-reliant industries are we seeing a strong IPR enforcement!

Who pays seems to trickle down and into the juridical system. It seems like a more important question today than right or wrong. Welcome to the world where patent poker, IPR trolling/bullying and DMCA abuse are the arguments for increased enforcement of IPR!

Anonymous Coward says:

Re: Re: Re:

If the law generates a scenario wherein abuse can exist without deterrent, the law needs also to provide suitable deterrent. Obviously, it is preferable (from the standpoint of government spending) to adjust the law to write out all but the most extreme of such scenarios, thus making the need for enforcement a rare occurrence.

nospacesorspecialcharacters (profile) says:

Re: Re:

You’ve just given me an idea.

Since the DMCA process itself is usually pretty automated, what’s to stop an ISP or video hosting service automating an opt-in DMCA counter-claim for their users?

It would have to be opt-in, because otherwise it would expose every user to a lawsuit automatically. But if you’re a creator and are confident that every video you post will be fair use, or your own work – you should be able to automatically set up a DMCA counter notice that your service provider can automatically respond with and keep your content up.

Anonymous Coward says:

Re: Re:

A breach of contract, necessary to facilitate the aforementioned abuse, was protected and even encouraged by copyright law.

Further, the degree to which the relevant law has used in this manner necessary for the abusive party, who is not legally inclined and was working counter to the advice of their lawyer, to be aware of this method points to a poorly designed law.

Androgynous Cowherd says:

Re: Re:

Yes, to some extent it is. Copyright’s very purpose is to give someone a limited ability to bar certain speech, with allegedly the best of intentions. And it’s become stretched and distorted, and powerful special interests have tilted the playing field strongly in favor of those making copyright claims and against those defending against such claims.

Giving them copyright, in other words, was like handing these feuding people some loaded guns. They would fight anyway, but they’re now very likely to do a lot more damage while doing so.

JMT says:

Re: Re:

Just another troll, but for the benefit of others…

“That totally is the fault of copyright and not the people involved!”

Some people are assholes. You will never prevent this. Give an asshole access to a bad law and you will get bad results. The practical and obvious solution is to fix the bad law, because you will never fix assholes.

Androgynous Cowherd says:

It’s pretty clear that Gina way, way, way over-claimed things in her original blog post alleging infringement. She makes it sound as if Dr. Amy is guilty and must pay up, solely based on the accusation.

Gee, I wonder what gave her that idea? Maybe three strikes legislation all around the globe? Or the “six strikes deal” back home? No, no, I know — it was the ICE seizures of Dajaz1 and several other hip-hop blogs based solely on bogus recording industry accusations!

anonymouse says:

Re: Seriously?

Do you not think a case about something this site discusses almost every day is relevant.
Why is it that there are people that attack sites and their authors for no reason other than the fact they can.
Calm down, these two individuals have created a nice example of how misunderstood the DMCA is, and how it can be abused so easily.

charliebrown (profile) says:

Re: Re: Seriously?

You raise a good point. I would like to see some push back on people/companies who abuse the DMCA.

It just seems strange to me that this is the story that might actually cause the push back. In my opinion, both bloggers mentioned in the article are idiots (but I do agree they have the right to be idiots!) especially the one who issued the take down notice.

Jessie (profile) says:

Re: Seriously?

This is the first time I’ve actually heard of a case that may actually, possibly, sort of have a chance at winning on this portion of the DMCA. Maybe if we can start seeing some DMCA abuse cases won we might get some momentum for cases against the RIAA and MPAA.

Then again, if someone were to actually win a case of DMCA abuse, it would probably just provide momentum for lobbying to remove that “loophole” from the DMCA.

GMacGuffin says:

$5 on NO Lawyer

In my experience, most people who make ridiculous threats and talk about their lawyer:

1) Don’t have a lawyer; or
2) Spoke briefly with a lawyer, and them removed all the *if* statements from what the lawyer said (e.g., “if this were the case”), and only used the *then* statements that they liked (e.g. “you would have a claim”). Which as you coders know, results in a fatal error that requires debugging.

My money’s on no lawyer at all, unless Gina’s reading of blawgs counts.

Anonymous Coward says:

This is the first time in a long time that a story has interested me without causing me to click through to the source. I don’t care who’s right and who’s wrong (although the article makes it seem a bit like Gina is crazier than the plan to rescue Han at the beginning of Return of the Jedi), but I don’t want to see the original sources out of a fear of giving either of these people more of an audience.

Yakko Warner (profile) says:

So, what happened to Gina's blog?

All of the links to Dr. Amy’s posts (on the blog that’s supposedly been taken down twice) pull up fine, but the ones going to Gina’s give me either a server error, a “not authorized”, or a WordPress login screen.

It would be pretty ironic if, because of Gina trying to get Amy’s blog offline, the Streisand Effect caused her own blog to get overloaded and shut down.

Anonymous Coward says:

“Dr.” Amy Tuteur is a serial troll. She frequently attacks people from the natural birth community (among others) on her blog. I remember reading stories about her taking accounts of mothers who had miscarriages and use them as an excuse to badmouth said bereaved mothers, calling them a slew of names including “murderer.”
As bad as this all may seem, it’s well deserved after years of unchecked abuse.

Anonymous Coward says:

Re: Re: Re:

Might I add, Gina I would like to invite you to stick around a while. You might actually learn a few things about copyright, the first amendment, and technology related issues. The articles here (and most of the commentary) is very well informed, and well written. This is one of the reasons I have stuck around for the past couple of years since I found it. ๐Ÿ˜‰

qw says:

Re: Re:

“”Dr.” Amy Tuteur is a serial troll. She frequently attacks people from the natural birth community (among others) on her blog. I remember reading stories about her taking accounts of mothers who had miscarriages…
As bad as this all may seem, it’s well deserved after years of unchecked abuse.”

Let’s do some deductive reasoning here.

You’re not likely to be a Techdirt regular – as well as being A. Coward, you’re not commenting on the copyright issues.

Neither are you likely to be a regular Techdirt critic, as you’re not criticising the usual straw men.

You put ‘Dr.’ in scare quotes, but your reference to the natural birth community is politically sensitive. So you’re here from the natural birth community, that’s all but a given.

The TFB blog is down, now. However, the remaining wordpress login box suggests the takedown was by the owner, not a redirect by the host. So it’s likely this was taken down by Gina herself, not due to any counter legal action.

Then you have posted within a half hour or so of the TFB blog being taken down, which would likely have been coincident with someone being logged into their admin tools, and aware of where traffic to TFB was originating.

So whilst I’ve got your attention, Gina, let me say something directly to you: As much as you care about natural birthing, we at this blog care about how abuse of copyright and IP law is damaging our culture.

We have no interest in the rights and wrongs of your petty squable, and we could care less if you have a lawsuit in the general.

Our concern is that you may currently be abusing the intended purpose of the DMCA, in order to achieve a personal goal.

Don’t do that. Please.

Anonymous Coward says:

Re: Re: Re:

Bravo. Well done and said…except for one tiny little problem with just a few of your chosen words – which I have to admit is kind of a “fingernails on a chalkboard” thing for me whenever I see or hear it. The expression is “couldn’t care less” not “could care less.” Could care less makes no sense. If you could care less, why don’t you. See what I mean?

By the way, my wife says this all the time and pointing it out just makes the situation worse so I’ve stopped trying to fix it there. ๐Ÿ™‚

btrussell (profile) says:

Re: Re: Re:

“We have no interest in the rights and wrongs of your petty squable, and we could care less if you have a lawsuit in the general.”

I hear similar when trying to enlighten people about copyright.

If you want people to listen to you, pull the fingers out of your ears when they are talking.

I thought this blog was to inform, not just whine and bitch amongst ourselves.

Jim Bee (profile) says:

DMCA takedown abuse first-hand

This is an old article now, but I just came across it. It matches the level of stupidity of my own experience pretty well. As I commented under a more recent story at TechDirt, I was recently in a DMCA takedown spat with a Hollywood screenwriter who objected to my putting screengrabs of her Twitter posts on a blog and making fun of them. She filed a DMCA takedown request, which promptly got my blog taken down. She also alleged I was a “stalker” even though the amount of contact I had with her was forty-eight hours worth of Twitter.

This sort of thing rather wears you down because there’s no recourse. I gave up on it for a month, then put the blog back up last night. I feel sure it’ll be taken down again soon by another phony request. But what do you do? There’s no justice in it anywhere. File your own (phony) claims against the other person’s website and sink to their level? Let your speech be silenced? And how do you defend yourself against a “stalking” charge today when it’s so plausible (at least in the public’s eyes)?

It’s a lose-lose.

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