More Details Emerge On Key Legal Fight Over DMCA Abuse

from the oops dept

Tue, May 21st 2013 2:15pm — Mike Masnick

We recently wrote about a key legal fight over DMCA abuse and whether or not you can expect punishment for bogus DMCA takedowns under 512(f). The fact that even the MPAA has weighed in to make sure that there are basically no remedies for its faulty DMCA notices suggests how important this fight is -- even though at its core it appears to be a silly petty squabble among two bloggers who clearly hate each other. You can read back over the previous posts to get the details, but a few details have come out since the last filing, which may be quite relevant.

Gina Crosley-Corcoran's (the blogger who filed the DMCA notices) filing against Amy Tuteur (the blogger who sued claiming a DMCA 512(f) violation) made a few claims that, if true, would likely weaken Tuteur's case dramatically. The key claims were that neither of the hosts that Tuteur said had removed her blog/account had actually done so. Without the actual removal or loss of account, Tuteur's overall claim is much weaker, since some cases have argued that you can only win a 512(f) case if the content was actually removed in reaction to the DMCA notices. Crosley-Corcoran's filing claimed that the first hosting company, BlueHost, never took down the content or the account, but that Tuteur chose to switch accounts, saying that BlueHost only warned that it could take down the content or shut down her account, but that it did not. However, Tuteur has posted to her own blog a screenshot from Crosley-Corocran's own blog that includes not just a screenshot of Tuteur's blog being shutdown on BlueHost, but also where Crosley-Corcoran brags about BlueHost taking down the entire blog. So... for Crosley-Corcoran to claim in her filing that BlueHost didn't take down the site, when Crosley-Corcoran's own statements show that it did... I can't imagine that will go over well in court.

Next up was the second host, Daring Host. Crosley-Corcoran's filing includes the claim that Daring Host told Tuteur it had to cancel her account due to being unable to handle the traffic, not because of the DMCA issue. It even provided a deposition from the owner of Daring Host claiming that he was clear to Tuteur that it was the traffic issue, not the DMCA notice, that resulted in the closing of the account. Except... Tuteur has now posted an original email from Daring Host to her about the closing of the account, where it's quite clear that a key reason was the possible liability from the DMCA notice.

Amy,

I spoke with the lawyer I’ve used with my businesses earlier today about the situation with your website and it being targeted. He informed me that hosting your website is a liability on a few different levels which is a risk to my business. While I support your cause and understand the situation you are in, I will no longer be able to host your website due to the risk and liability it poses to my business.

I do not want to leave you and your website out in the cold because I can understand that fighting against the people who are targeting you is not an easy task. I have done some research for you and found a couple of different businesses that should be able to host your website better in terms of dealing with it being targeted.

The first host I’ve found is called Alibabahost.com. On their website they state “AlibabaHost provides freedom of content and speech. Regarding the DMCA complains, we forward them to you and you decide how to proceed next.”

Considering the only legal liability that had come up had been the DMCA notice, combined with the fact that he directly highlights how the first host he suggests handles DMCA complaints, it seems pretty clear that the DMCA takedowns and further threats of more takedowns was a (if not "the") driving force behind telling her to look elsewhere. Given that the deposition from the same owner, Nick Esposito, appears to conflict with what he directly told Tuteur, he may face some interesting questions as well from the court.

For what it's worth, Crosley-Corcoran appears to have shown up in our comments on the last post claiming:

I did not "brag" about my DMCA taking down her site. In fact, the court has the evidence (submitted by her side, ironically) showing me saying that I, quote, "wish I could take credit, but this was more than me." I knew then that the host did not take action to remove her site because of my DMCA, and she knew it too.

Given the screenshot above, this appears to be wholly untrue. She does appear to have very clearly bragged about the DMCA notice taking down her site. Also, there was a Facebook post from Crosley-Corcoran that talked excitedly about how she was spending the "legal fund" that she had solicited from her readers to help take down the site from Daring Host, and: "if she keeps on doing what she's doing, this will keep happening."

Also, while it's cut off at the end of that screenshot above, that original post from Crosley-Corcoran appears to clearly admit that she's using the DMCA notice not to stop copyright infringement, but to silence protected speech:

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.

Combine all of that, and it seems like a pretty strong argument that Crosley-Corcoran used the DMCA to silence criticism, rather than for stopping copyright infringement, and that she knew and celebrated that fact publicly, contrary to what she stated in her filing and in our comments.

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Filed Under: 512f, amy tuteur, blog fight, copyright, dmca, gina crosley-corcoran
Companies: bluehost, daring host

36 Comments

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Anonymous Coward, 21 May 2013 @ 2:27pm

Leave it to you to elevate a cat fight.
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Anonymous Coward, 21 May 2013 @ 2:33pm

Re:
A cat fight that shows how the DMCA can be abused, if Crosley-Corcoran wins think of the damage a group like Westboro Baptist Church could do by misusing the DMCA.
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Mike Masnick (profile), 21 May 2013 @ 2:33pm

Re:
Leave it to you to elevate a cat fight.

Not me. Your buddies from the MPAA seemed to think it was a big deal. Seems like maybe the legal issues are important, and you don't want that to happen, so you start throwing insults.

Very adult like.
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Anonymous Coward, 21 May 2013 @ 2:36pm

Re:
"Leave it to you to elevate a cat fight."

I'm still waiting for your blog, boy, where you'll astound us all with your insight on these matters.
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bob, 21 May 2013 @ 2:39pm

Why am I not surprised?
Face it Mike, if you lie down with dogs you're going to get fleas. You spout this high-minded rhetoric about censorship etc, but the people who glom on to it are the low-grade pirates who think that plagiarism and piracy is the way to having a full blog. They'll steal photos and text left and right and thanks to your wild-eyed defense, think they're somehow sticking up for some great principle. But the only great principle they're defending is that they're too cheap and lazy to do their own work.

This is the same thing that you found with Shepherd Fairey and Jamey Thomas. Some people just aren't that trustworthy and you want to base some great philosophical crusade on them?
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DannyB (profile), 21 May 2013 @ 2:46pm

Re: Why am I not surprised?
The people who glom on to it, as you say, in no way say anything about the ideas stated.

You cannot address the actual topic. Always trying to change the focus or create a distraction.
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jameshogg (profile), 21 May 2013 @ 2:58pm

Re: Why am I not surprised?
"But the only great principle they're defending is that they're too cheap and lazy to do their own work."

The principle is that derivative artists have rights to their fruits of labour.

Telling different versions of Star Wars, or The Lord of the Rings, or The Lion King IS "doing your own work". And copyright deprives artists of the right to do that.

What do you think websites like deviantArt and fanfiction.net have been doing for so long? Unless you want to really be consistent and say that these websites should be shut down, you're going to have to step back and see how copyright is AGAINST the principles of John Locke, not for them.

Crowdfunding, whether its through the many tried and tested examples of collecting tickets for gigs, or through Kickstarter, or pre-ordered copies of DVDs, is superior to copyright in every way because both original and derivative artists have their fruits of labour protected. It makes copyright discreditable from every angle.

You are not entitled to say how you are best defending the "rights of artists". So many markets have been wiped out as a result of the communist-tendencies of copyright and the life, liberty and property has been sucked out of derivative artists for too long. Crowdfunding gives us no excuse for it.

There. And I didn't have to mention how you've exculpated the accountability of corporations for what they do through using pirates as scapegoats. "Since the pirates are running riot, why should be do anything about privacy invasions?" I think there are even many principled copyright maximalists who could call you out for this nonsense. It is a matter of principle. The Patriot Act is to be opposed unequivocally, and I say this as somebody who supports the fight against Islamic fascism. It's the same thing.
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Mike Masnick (profile), 21 May 2013 @ 2:58pm

Re: Why am I not surprised?
Bob, as per usual, you appear to be confused. The person who is not trustworthy in this case is the person abusing the DMCA.

Next time, try reading. I know, I know, that involves actually understanding the issues at play -- and that's not the sort of thing you do -- but it might help you not sound so completely confused all the time.
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Larry, 21 May 2013 @ 3:04pm

Re: Why am I not surprised?
"bob" eh?

Is that you name or what you do?

Oh and look. I'm just as on topic as you are! Yay me!
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Anonymous Coward, 21 May 2013 @ 3:35pm

Re: Re:
"Leave it to you to elevate a cat fight."

Not me. Your buddies from the MPAA seemed to think it was a big deal. Seems like maybe the legal issues are important, and you don't want that to happen, so you start throwing insults.

Seems like your pirate apologist buddies at EFF jumped into the fray even before the MPAA. I don't see case this moving the dial the way you piracy apologists hope it goes.

Very adult like.

Damn man, are you getting soft?
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That Anonymous Coward (profile), 21 May 2013 @ 3:38pm

Isn't there a screen shot somewhere of Gina asking her little army of supporters to also send DMCA notices? Pretty sure I saw one, anyone but Gina is allowed to correct me as her grip on reality seems more focused on making herself a martyr.

Oh and Gina, because its clear you can't let any mention of your name go past without injecting your woe is me tale, it is awfully hard to rewrite history on the internet. It never forgets.

Oh and again this story isn't so much about you as it is about a process ripe for abuse and a court ruling about that issue. Your fall is just icing on the cake you whackjob.
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Rikuo (profile), 21 May 2013 @ 3:55pm

Re: Why am I not surprised?
Hi there, great to see you bob! I'm one of them darned'd pirates you hate so much. Hang on...something in my pocket's poking me...ughh, what is it...ticket stubs? Oh yeah, I went to see the movies. Twice in the past week, Star Trek and Iron Man 3. Plus, I've made plans to see Great Gatsby with a friend.
I look to my left, I see a whole pile of PS3 discs and DS cartridges on my bedside cabinet. I look on my desktop, I see an icon for Steam and Origin, both with a large library of games. (We're talking hundreds of euro's worth).
I also infringe.

That's the problem you and your ilk have. You want to attack the pirates, but you ALWAYS, always always always, forget that the biggest pirates are also the biggest customers. You simply cannot separate pirates from customers. We're both. I'm both. Attack me for infringing, and I will stop paying altogether (mainly because you, in your infinite wisdom, would think that taking away my internet connection somehow helps your profit margin)
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Akari Mizunashi (profile), 21 May 2013 @ 5:41pm

Either I'm at a loss or there's something missing in the "math" of the DMCA "bragging".

Did the DMCA notice explicitly claim the entire blog was infringing? If not, then how did an entire site get taken down?

Not to side with anyone in this ridiculous situation, but the bragging to me seems to come off as "I sent them a DMCA to remove a picture and instead took down the whole blog! LOL!"

Did I misread?

Wait. Why am I even concerned over this. DMCA abuse is so rampant, I doubt it's even used for legitimate claims. :S
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Anonymous Coward, 21 May 2013 @ 6:08pm

Re:
Leave it to you to sink to catfight levels to promote the DMCA.
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MLE (profile), 21 May 2013 @ 8:21pm

Passerby - NOT a silly fight.
Hi - Confessing right up front that I had never heard of techdirt until the blogger I like (skeptical ob) got into this battle, and this is my first comment. So while I have no understanding of techdirt or your readers' perspectives, I do have perspective on the fight between Gina and Dr. Amy.

This fight is about Dr. Amy's efforts to combat misinformation from the "natural birth" community, which is repeated as gospel around the web, and has contributed to the preventable deaths of mothers and babies. There are lives at stake here. After witnessing 20 births, Gina confessed that perhaps she wasn't the expert on birth that she thought she was, and Dr. Amy pounced on this admission. Gina's childish reaction shows how important her credibility with the "natural birth" crowd is to her. It's much more important to her than the evidence.

This is much more than a catfight, and if you had a wife/daughter led astray by the influential Ginas of this world, as many of the skeptical ob's followers were at one time, you would understand why it's so important that Dr. Amy not be silenced because Gina can't refute Dr. Amy's rock-solid analysis of the evidence. This fight is the furthest thing from silly. Please read the hurtbyhomebirth blog if you have any more doubts.
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Anonymous Coward, 21 May 2013 @ 9:09pm

Re:
No, you didn't miss anything. A cowardly hosting company elected to take down an entire blog over a DMCA notice about an infringing picture. The situation was exacerbated by the dope claiming victory and doing a touchdown dance over the host's gross over-reaction. That's why this is a huge non-event. Nothing in the DMCA required the host to go off of the deep end the way they did.
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Watchit (profile), 21 May 2013 @ 10:23pm

It's an interesting court case to be sure... but the pettiness of the fight between the two women makes it almost unbearable to read! It's like watching children fight except with more adult language.
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horse with no name, 21 May 2013 @ 10:49pm

Re: Re: Why am I not surprised?
It seems like you are very pre-disposed to accept one side of the story, and discount the other. In a she said / she said deal, you seem all to willing to take one side.

Have you considered that the "original email" could be not exactly original? The claim here is that the hosting company, which has no reason to do so, has lied in court against it's own customer... how weird is that?
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That Anonymous Coward (profile), 21 May 2013 @ 11:20pm

Re:
Personally I see Dr. Tuteur in a better light, simply because she isn't running from blog to blog complaining how everyone is just out to get her and be mean.

The court ruling has a chance to change the landscape in a dramatic way, that benefits many more than these 2 bloggers in their fight. I see much of the escalation as being driven by 1 parties need to be the correct martyr that the bad people want to silence. Sadly that seems to be the typical reaction nowdays when someone disagrees with someone else.
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bratwurzt (profile), 22 May 2013 @ 3:48am

Re: Re: Re: Why am I not surprised?
It seems you're writing this on his blog. Where he can write anything. Y U so jealous?
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Anonymous Coward, 22 May 2013 @ 5:28am

the DMCA has been nothing other than the Congress sponsored entertainment industries method of shutting down anything and anyone they didn't like, regardless of whether there had been any wrong doings. it was purposefully left as it is so that those industries could do maximum damage in all instances and have no recourse against it when it had legitimate sites or items closed/removed. if they were made to pay for all the wrong instances, there would be many more legitimate items and sites still flourishing, as they would have taken much more care over the closures wanted and not wasted money. the really annoying thing is, if the situation happens in reverse, all hell is let lose and law suits started by the industries demand ridiculous sums. it shows how one sided the law is and, to my mind, why it was introduces as it is, a payback from Congress for the lobbying and campaign contributions to them! typical of today's politics but disgraceful none the less!!
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horse with no name, 22 May 2013 @ 6:29am

Re: Re: Re: Re: Why am I not surprised?
Ahh, so I should go to Rush Limbaugh's site to point out Mike Masnick is leaning to one side of the argument, rather than posting it here?

YU so stupid?
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Ben S (profile), 22 May 2013 @ 7:14am

Re: Re: Re: Why am I not surprised?
If, as you suggest, this email is *not* the original email, the defendant could subpoena a copy of the original email from the provider of the email service, or from the hosting provider, to prove the plaintiff is lying. This would be a very easy tactic to undermine all credibility the plaintiff may have, making a victory in this regard that much easier. I'm not really seeing that here, so chances are this email is indeed the original email.
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Karl (profile), 22 May 2013 @ 7:33am

Re: Re: Re:
pirate apologist buddies at EFF

...and with that phrase, you demonstrate that you're a liar who is not worth listening to. Thanks for clearing that up.
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Ben S (profile), 22 May 2013 @ 7:45am

Re: Passerby - NOT a silly fight.
I'll try to explain the purpose of the site for you. Basically, Techdirt is about how new technologies can disrupt established industries, resulting in something that is overall good for the industry as a whole, yet seem harmful to the established players in those industries. In particular, the attempts by those established players to try to block the new innovations and advancements in technologies.

Due to regulatory capture causing copyright, as well as patent law, to go far beyond anything reasonable, copyright and the DMCA are frequent topics here. The reason for this article is specifically the abuse of the takedown provisions of the DMCA, rather than the fight itself. This is a clear and obvious attempt to silence free speech using the DMCA is the method, despite defenders of the takedown provisions claiming that nothing about copyright can or will harm free speech.
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Anonymous Coward, 22 May 2013 @ 8:36am

Re: Re: Re: Re: Re: Why am I not surprised?
So... he's not allowed to have an opinion on the matter? That what you're saying?

Still mad that John Steele got what he deserved, I see.
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Anonymous Coward, 22 May 2013 @ 8:46am

Re: Re: Re: Re:
EFF are the most rabid piracy apologists in the nation. +1 head pat for your effort.
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Lowestofthekeys (profile), 22 May 2013 @ 8:56am

Re: Re: Re: Re: Re: Why am I not surprised?
I think he is alluding to the fact that no one gives a shit about your speculation.
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Anonymous Coward, 22 May 2013 @ 8:58am

Re: Re: Re: Re: Re:
Yeah and the MPAA/RIAA would step over their own mothers to maintain the bottom line.

What's your point?
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Anonymous Coward, 22 May 2013 @ 10:28am

Re: Re: Re: Re: Re: Re:
What's your point?

Umm... that Karl's a drooling moron.
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MLE, 22 May 2013 @ 11:53am

Re: Re: Passerby - NOT a silly fight.
Thank you Ben. Free speech issues in general are very important to me, so I am glad this is being discussed here. I am taking objection to the fact that the underlying discussions which led to the DMCA issue are being unnecessarily maligned as a silly squabble or a cat fight. The protections of free speech are most important when it is concerning speech we do not agree with, obviously, and that's why Gina went to such extremes to shut Dr Amy down. The underlying debate is not something that should be brushed off as ladies' hysteria. It doesn't need to be mentioned at all, in fact. Just please don't minimize something that is literally a matter of life and death.
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nasch (profile), 22 May 2013 @ 1:28pm

Re: Passerby - NOT a silly fight.
This is much more than a catfight, and if you had a wife/daughter led astray by the influential Ginas of this world, as many of the skeptical ob's followers were at one time, you would understand why it's so important that Dr. Amy not be silenced because Gina can't refute Dr. Amy's rock-solid analysis of the evidence.

One need not have any stake in the underlying argument to understand it's important not to allow copyright to be abused to silence speech. Even if Gina is right and Dr. Amy is wrong, the DMCA abuse still needs to be stopped - the argument has nothing to do with that issue.
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Anonymous Coward, 22 May 2013 @ 1:36pm

Re: Re: Re: Passerby - NOT a silly fight.
How is this not the fault of a worry-wart web host? Why didn't it simply take down the allegedly infringing photo? Was a counter notice even filed?

Sorry I don't see this as a censorship case. More like a contractual dispute between the owner of the website and the web hosting company. Nothing on the DMCA required the web host to take down the site.
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anonymouse, 22 May 2013 @ 3:51pm

Re:
I suspect that because they are like little kids in 1st grade that the MPAA or RIAA or whoever they use cannot totally guarantee that they will not say something stupid that forces the judge to make a ruling on false DMCA punishments, something the copyright cartel i am sure dreads happening.
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Karl (profile), 23 May 2013 @ 12:17am

Re: Re: Re: Re: Re:
EFF are the most rabid piracy apologists in the nation.

The EFF are not, and have never been, piracy apologists, much less "rabid" piracy apologists.

It's exactly like calling the ACLU "Nazi apologists" because they fought for the right to free speech in Skokie, or calling them "Communist apologists" because they fought the Palmer raids.

Anyone who says something this ridiculous shows that they have a radical agenda against free speech and public rights. So, again, thanks for clearing that up.
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Some Other AC (profile), 23 May 2013 @ 8:38am

Re: Re: Re: Re: Passerby - NOT a silly fight.
While i agree that the Web Host over reacted here, this situation would not have occurred had that hack(in my opinion), Gina, not issued the DMCA notice. Ultimately, a very badly written law in the hands of a greedy lawyer looking for billable hours and a self centered self professed "expert"/blogger caused this over reaction to occur. Get rid of the law(and the greedy, unethical buggers(lawyers) and this situation would not have happened.
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