District Court Adopts Subjective Test For Digital Millennium Copyright Act Takedown Notices

Finger

We’ve 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 objectively reasonable 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 Section 512(f).

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 impression in 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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