Tuteur v. Crosley-Corcoran, Civil Action No. 13–10159–RGS.

• Decision Date: 10 April 2013
• Docket Number: Civil Action No. 13–10159–RGS.
• Citation: 961 F.Supp.2d 329
• Parties: Amy TUTEUR, M.D. v. Gina CROSLEY–CORCORAN.
• Court: U.S. District Court — District of Massachusetts

961 F.Supp.2d 329

Amy TUTEUR, M.D.

v.Gina CROSLEY–CORCORAN.

Civil Action No. 13–10159–RGS.

United States District Court,

D. Massachusetts.

April 10, 2013.

Russell Beck, Stephen D. Riden, Beck Reed Riden LLP, Boston, MA, for Amy Tuteur, M.D.

Thomas M. Ciampa, Evan M. Fray–Witzer, Ciampa Fray–Witzer, LLP, Boston, MA, for Gina Crosley–Corcoran.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. Civ. P. 12(b)(2)

STEARNS, District Judge.

This action arises out of an escalating polemic between two bloggers who have diametrically opposed views on the safety and virtues of home birthing. Plaintiff Amy Tuteur, a resident of Massachusetts, is a former physician and critic of midwifery. Tuteur authors several blogs, including The Skeptical OB. Defendant Gina Crosley–Corcoran, who lives in Illinois, is a midwife (doula) and author of the blog TheFeministBreeder. After a particularly acrimonious and personal internet exchange, on December 13, 2012, Crosley–Corcoran posted a photograph of herself on her blog site making a graphic gesture with her middle finger that is often associated with an unrealized ambition of French soldiers at the Battle of Agincourt. The photo's caption informed the reader that Crosley–Corcoran was giving Tuteur “something else to go back to her blog and obsess about.” Tuteur copied the photo and posted it on The Skeptical OB without Crosley–Corcoran's permission. Crosley–Corcoran responded with a cease and desist letter to Tuteur alleging copyright infringement. She also sent Tuteur's website provider, BlueHost (a company whose servers are based in Utah), a “takedown notice” pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c)(3). Crosley–Corcoran's counsel made several attempts to resolve the matter more or less amicably. These efforts, however, came to naught when Tuteur preemptively filed this lawsuit alleging abuse of the DMCA by Crosley–Corcoran.

In her two-count Complaint, Tuteur accuses Crosley–Corcoran of making a material misrepresentation of infringing activity, in violation of 17 U.S.C. § 512(f), and of tortiously interfering with an advantageous contractual relationship enjoyed by Tuteur. Both Counts are premised on the takedown notice sent by Crosley–Corcoran to BlueHost. Crosley–Corcoran, for her part, moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2). She maintains that as an Illinois resident whose connection to Massachusetts is only by virtue of the ubiquitous access that readers like Tuteur have to her blog over the world wide web, she lacks the “minimum contacts” necessary to subject herself to in personam jurisdiction in this forum.¹

As a rule, a court will determine whether Article III jurisdiction exists before reaching the merits of a plaintiff's claim. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88–89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). But if the merits can be readily resolved in favor of the party challenging jurisdiction, complex jurisdictional questions can be avoided. Norton v. Mathews, 427 U.S. 524, 530–532, 96 S.Ct. 2771, 49 L.Ed.2d 672 (1976). This is such a case. The core question—one that the First Circuit has not fully addressed—is whether ownership of an active, interactive, or passive website maintained by a service provider based outside of Massachusetts but which Massachusetts residents can access over the Internet satisfies the purposeful availment test.²See Cossaboon v. Maine Med. Ctr., 600 F.3d 25, 35 (1st Cir.2010) (the mere fact that a web site is interactive is not sufficient to confer jurisdiction as such a rule would eviscerate the limits on personal jurisdiction—one has to look to the extent to which the interactive features are actually used to conduct commercial activities).

Putting aside the thorny issue of internet-based personal jurisdiction, in reviewing the exhibits attached to the pleadings, the court seriously questions whether Tuteur has stated a viable cause of action against Crosley–Corcoran. The takedown notice at issue appears to conform to the letter of the requirements of section 512(c)(3) the DMCA. In it, Crosley–Corcoran states accurately that her likeness has been copied without her express authorization and published by Tuteur without permission on her Skeptical OB website. See Compl. Ex. 11. It is true that if the tables were reversed, and this was a lawsuit brought by Crosley–Corcoran against Tuteur for copyright infringement, Tuteur would have a plausible, and even dispositive fair use affirmative defense, see Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 590, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), or as she suggests at one point, a defense of implied license, see Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40–42 (1st Cir.2010). But there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission. Seen in this light, there is no material misrepresentation by Crosley–Corcoran of infringement, as a viable cause of action under section 512(f)(1) would require.³

Tuteur's tortious interference claim would also seem vulnerable on similar grounds. The Complaint alleges that Crosley–Corcoran by causing BlueHost to remove her photograph from Tuteur's blog site “[was] acting with improper motive and/or improper means in causing harm to Dr. Amy [Tuteur] and preventing her exercise of contractual rights.” Compl. ¶ 78. See also United Truck Leasing Corp. v. Ronald D. Geltman, 406 Mass. 811, 816, 551 N.E.2d 20 (1990) (adopting Restatement (Second) of Torts § 766 (1977)). Here, there would seem nothing improper about the purpose of Crosley–Corcoran's takedown notice, which was to stop what she believed was an infringement of her copyrighted likeness, while the means that she chose, sending a the notice to the service provider, was one explicitly authorized by the statute.

A district court may, on its own initiative, note the apparent inadequacy of a complaint and enter a dismissal on the merits. It will do so, however, only after giving a plaintiff notice and the opportunity to address the complaint's perceived deficiencies. See Wyatt v. City of Boston, 35 F.3d 13, 14–15 (1st Cir.1994); see also Chute v. Walker, 281 F.3d 314, 319 (1st Cir.2002). Consistent with these strictures, the court will give Tuteur twenty-one (21) days from the date of this decision to show cause why the Complaint should not be dismissed on the...