When a statute is clear, judges are supposed to follow it or explain, in some detail, why they shouldn’t. That’s why we were disappointed by this week's ruling in Tuteur v. Crosley Corcoran. In the ruling, the judge suggests that the Digital Millennium Copyright Act (“DMCA”) does not require the sender of a takedown notice to affirm anything except its belief that the targeted material is being used without permission from the owner or its agent. Trouble is, the statute says something very different, i.e., that the sender must affirm that the material is not authorized by “the copyright owner, its agent, or the law.”

As we explained in an amicus brief we filed in the case, those three words matter because they require that the sender of a takedown notice do more than simply check its records to see whether a given use has been authorized by the owner. As numerous courts have recognized, the sender has to take the extra step of considering whether a given use is authorized by law, such as whether it is a fair use. Without that requirement, copyright owners have little reason to avoid taking down obvious fair uses, like a 29-second clip of a dancing baby, a remix video comparing Twilight and Buffy the Vampire Slayer, or an hour-long lecture on remix culture by an internationally renowned law professor.

Admittedly, the facts of this particular case are messy. The dispute began as an online battle between two bloggers—doula Gina Crosley-Corcoran and OB/GYN Dr. Amy Tuteur—about the safety of home birth. After an exchange of critical posts, Crosley-Corcoran posted a photo of herself making a well-known, finger-related gesture to Tuteur and writing: “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.” Tuteur responded with a post of her own that included the photo with some commentary of her own—a clear case of fair use though not, perhaps, a particularly savory one.

Crosley-Corcoran then sent a DMCA takedown notice to the host of Tuteur’s blog, alleging copyright infringement of the finger photo. After Tuteur changed hosts, Crosley-Corcoran sent another takedown notice to the new host. According to Tuteur, this second notice was sent after Crosley-Corcoran’s attorney admitted that there was no valid copyright claim. And on her blog, Crosley-Corcoran wrote that she would be prepared to settle the matter if Tuteur would “agree to stop personally attacking me.” As others have also concluded, the chain of events suggests that Crosley-Corcoran was using the DMCA to silence a critic. Accordingly, Tuteur filed a claim under Section 512(f) of the DMCA, which is designed to hold copyirght owners accountable for misrepresentations made in DMCA takedown notices.

The first issue before the court was whether the Plaintiff had sued in the right court. The court initially avoided that issue and called for briefing on whether a 512(f) claim can be based on a fair use. Having decided to reach this issue prematurely, the court recognized early in the decision that Section 512 does require a copyright owner to form a good fair belief as to whether a given use is authorized by law. So we were surprised to find that, just few pages later, the court also stated that Section 512 only requires a copyright owner to affirm that the material is being used without permission. That latter suggestion is impossible to reconcile with either the statute or the weight of judicial authority.

The court also appears to have been influenced by a misreading of the briefing. The court suggests that Tuteur and her supporting amici had insisted that copyright owners have to do an intensive investigation of all possible affirmative defenses before sending a takedown notice. Our actual argument was simpler: that the DMCA was not intended to set up a permissions culture, where any speech may be taken offline if the speaker is using unlicensed material. In other words, Section 512 was not intended to trump the fair use doctrine.

Perhaps the most dangerous aspect of the decision was its implicit approval of the notion that fair use need not be considered as part of the takedown process because it is an affirmative defense. In other words, as a matter of procedure in an actual lawsuit, it must be proven by an accused infringer after it has been established that the copying was otherwise unlawful. But of course the whole point of the DMCA process is to sidestep an actual lawsuit; it seems odd, at best, to selectively import the federal rules of civil procedure into a process that is designed precisely to avoid them. What is more, if the DMCA did not require copyright owners to consider fair use prior to sending a takedown at all, Section 512 is an open invitation to private censorship. For example, an author could send a takedown notice to remove a critical book review based on just a few quoted sentences. After all, that's a fair use, albeit one no sane person would bother to challenge in a court of law.

Fortunately, the court does at least recognize that Section 512(f) is intended prevent abuse the DMCA takedown process. It remains to be seen what, in this judge's view, qualifies as abuse. We'll continue to watch the case closely.