previously written about Tuteur v. Crossley Corcoran,
the Digitus Impudicus copyright case in the
District of Massachusetts. The facts can be summarized as
follows: Blogger A posted a photo of herself giving Blogger B
"the finger." Blogger B reposted the photo as part
of her response. Blogger A then issued a Digital Millennium
Copyright Act (DMCA) takedown notice to Blogger B's internet
service provider, claiming that Blogger B had committed copyright
infringement by republishing the photograph.
So, is Blogger A subject to liability for her questionable
takedown notice? Blogger B thinks so. Section 512(f) of the DMCA ) imposes liability
on a copyright owner who makes a "knowing material
misrepresentation" in a takedown notice. In Tuteur
v. Crossley-Corcoran, Blogger B (Tuteur) brought suit,
essentially alleging that the takedown notice was a material
misrepresentation because any objectivelyreasonable
person could see that her republication of the photograph was not
copyright infringement (because of defenses such as fair use,
implied license, etc...). Blogger A (Crossley-Corcoran)
retorted that her takedown notice was not in bad faith because she
subjectively believed that she had a good case, and
that's all that was required.
This week, in a matter of first impression in the First Circuit,
Judge Richard Stearns held that the standard to be applied to
takedown notice issuers is subjective, not objective.
Therefore, a copyright owner like Crossley-Corcoran does not need
to consider potential defenses before issuing a takedown notice, as
long as she honestly believes in her case, however ill-founded that
belief may be. If such a standard is subject to abuse, Judge
Stearns advised, it is up to Congress, not the courts, to rewrite
This is not a total victory for Crossley-Corcoran, however.
Judge Stearns refused to dismiss the case because he found that
Tuteur had in fact adequately pled her case even under the more
difficult subjective standard. Meanwhile, down the hall,
Judge Nathaniel Gorton still has a second chance to make a first
a similar suit recently filed by Harvard Professor Lawrence
Lessig. Whether or not Judge Gorton follows Judge Stearns'
lead, this issue is highly controversial and appears destined to
eventually reach the First Circuit.
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