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 DMCA.com" 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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  1. icon
    GMacGuffin (profile), 29 Jan 2013 @ 1:41pm

    $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.

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