MPAA Gets Its Wish: Court Basically Says It Can File Bogus DMCA Takedowns Without Concern For Fair Use

Well, this is unfortunate. We've been covering a somewhat bizarre, petty legal squabble between two bloggers who have very different views about birthing methods, and who have a history of sniping at each other. Eventually the sniping went legal after one (Gina Crosley-Corcoran) posted a photo of herself giving the middle finger, telling the other (Amy Tuteur) to "take back to your blog and obsess over." Tuteur, in response, posted the image on her blog along with some choice words for Crosley-Corcoran. Crosley-Corcoran threatened a highly questionable copyright infringement claim over the reposting of the photo, then eventually did send equally questionable DMCA takedown notices to Tuteur's hosting companies (plural) leading Tuteur to feel the need to shift hosts a few times. Crosley-Corcoran publicly laughed at Tuteur's blog being taken down, and later stated (publicly) that she wanted to stifle Tuteur's speech by getting Tuteur to stop talking about her, and finally soliciting a "legal fund" to go after Tuteur, promising to continue to take down her blog wherever it was posted.

This seemed like a clear case of abusing the DMCA to stifle speech, and we noted that it might be an important case in determining if the DMCA's 512(f) clause had any teeth. 512(f) is the clause that provides for damages if you file a bogus DMCA notice (technically if you make "material misrepresentation" in the notice). The key question: is sending a DMCA notice when the use is clearly fair use a "material misrepresentation." The EFF jumped in to help argue this point, freaking out the MPAA who insisted that having to consider fair use before filing an abusive, censorious DMCA takedown is crazy talk.

Unfortunately, it appears that the judge has now agreed with the MPAA that Congress probably didn't intend for DMCA filers to have to consider fair use, saying that if that was the intent, Congress should change the law. The argument made by the court is that the takedown process was designed to be "expeditious" and having to consider things like fair use make it too slow.

... in enacting the DMCA, Congress did not require that a notice-giver verify that he or she had explored an alleged infringer’s possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agent’s permission.... There is a reason for this. To have required more would have put the takedown procedure at odds with Congress’s express intent of creating an “expeditious[],” “rapid response” to “potential infringement” on the Internet.... Undoubtedly abuses will occur - as is the case with almost any system that permits legal self-help.... For these abuses Congress provided a remedy in section 512(f). 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.

I think this is an incorrect reading of the law, since to file a DMCA notice you are making a statement that you believe the work is infringing, and as Section 107 of the Copyright Act clearly states, "the fair use of the copyrighted work... is not an infringement." So I don't see how you can truly claim that something is infringing without at least exploring whether it's fair use.

Still, if we accept the court's reading of this, it seems (to me, at least) to only further the argument that the DMCA takedown process is a clear violation of the First Amendment, because it now clearly allows for blatant censorship, with no remedy even if the process is abused to remove non-infringing speech, such as fair use.