TUTEUR v. CROSLEY-CORCORAN | Civil Action No. 13-cv-10159 MBB | D. Mass. May 1, 2013 | The Cyberlaw Clinic filed this amicus curiae brief (pdf) on behalf of the Electronic Frontier Foundation and the Digital Media Law Project, asking the United States District Court for the District of Massachusetts to join other courts that have addressed the issue and confirm that that copyright owners must consider whether a use is fair before sending a Digital Millennium Copyright Act takedown notice pursuant to Section 512(c) of the Copyright Act. The case concerns a Section 512(f) misrepresentation claim asserted by a plaintiff who alleged that defendant’s 512(c) notice was improper, because plaintiff’s use of defendant’s photograph constituted fair use. The Court issued an order to show cause, suggesting that it might read Section 512(f) very narrowly and require only that those sending takedown notices represent that they own the content at issue. EFF and DMLP expressed concerns that this view of Section 512(f) might undermine its effectiveness in serving to balance users’ rights against those of content owners in the DMCA’s takedown regime. This concern is particularly apparent in cases involving critical speech, where – absent an effective mechanism to challenge wrongful takedowns under Section 512(f) – Section 512(c) may be used improperly to silence a speaker with whom a copyright owner disagrees.
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