On September 10, 2013, the US District Court for the District of Massachusetts issued an opinion in Tuteur v. Crosley-Corcoran concluding that the good faith requirement under the Digital Millennium Copyright Act (DMCA) for sending a takedown notice to an alleged infringer does not require the copyright owner to evaluate the alleged infringer's possible fair use or other affirmative defense before sending the notice. Notably, the court declined to follow Lenz v. Universal Music Corp., a 2008 case in which, in ruling on a motion to dismiss, the US District Court for the Northern District of California, suggested that a copyright owner could be liable under Section 512(f) of the DMCA for a material misrepresentation of infringing activity if it fails to consider whether the use at issue is fair use before sending the notice.

This case was before the court on a motion to dismiss for lack of jurisdiction by Gina Crosley-Corcoran, the defendant copyright owner. The court denied the motion, finding that the plaintiff's allegation that Crosley-Corcoran wrongfully served a DMCA takedown notice in violation of Section 512(f) on the plaintiff, a resident of Massachusetts, satisfied the Massachusetts long-arm statute and established personal jurisdiction.

The lawsuit arose out of an online dispute between two bloggers, Dr. Amy Tuteur, a former physician and Crosley-Corcoran, a doula, concerning the safety of home childbirth. After a heated internet exchange, Crosley-Corcoran posted a photo of herself on her blog with a graphic hand gesture and a message to Tuteur, who copied the photo and posted it with commentary on her own blog without Crosley-Corcoran's permission. A few days later, Crosley-Corcoran's attorney:

Tuteur then filed a counter notice under the DMCA with her ISP. After the ISP notified both parties that it was up to either or both of them to pursue legal action, Tuteur moved her blog to a new ISP and restored the picture. Crosley-Corcoran sent the new ISP a takedown notice, and Tuteur again submitted a counter notice.

Ultimately, Tuteur filed suit alleging that Crosley-Corcoran made a material misrepresentation of infringing activity in violation of Section 512(f) of the DMCA. The complaint also alleged that Crosley-Corcoran committed tortious interference with the advantageous contractual relationships that Tuteur enjoyed with her ISPs.

Tuteur, along with amicus The Motion Picture Association of America, relied on Lenz in arguing that a copyright owner, in this case Crosley-Corcoran, must investigate any possibly applicable fair use or other affirmative defense that the alleged infringer might have before sending a takedown notice. Crosley-Corcoran, along with amici Electronic Freedom Frontier Foundation and Digital Medial Law Project, argued that liability under Section 512(f) requires proof of a copyright owner's actual, subjective belief that the copyright owner is making a material misrepresentation of infringement.

In dismissing Tuteur's reliance on Lenz, the court found persuasive the Ninth Circuit's decision in Rossi v. Motion Picture Association of America, Inc. In that case, the Ninth Circuit held that caselaw and the structure of the DMCA support the conclusion that the good faith belief requirement of Section 512 encompasses a subjective rather than objective standard. The Ninth Circuit further concluded that there must be a demonstration of some actual knowledge of misrepresentation on the copyright owner's part for liability under Section 512(f).

The court further noted that in a later decision in Lenz denying cross-motions for summary judgment, the Lenz court significantly retreated from its earlier ruling, noting that in light of Rossi:

The court also found persuasive that Congress, in enacting the DMCA, did not require that a sender of a takedown notice verify that he had explored an alleged infringer's possible affirmative defenses before acting, only that he affirm a good faith belief that the copyrighted material is being used without his or his agent's permission. The court noted that to require more would conflict with Congress's express intent of creating an expeditious response to potential infringement on the internet.

For more on the DMCA generally, see Practice Note, Digital Millennium Copyright Act (DMCA): Safe Harbors for Online Service Providers.