On May 21, 2012, Tennessee State Governor Bill Haslam signed Public Chapter 1075 ("SB 2371") into law. Tennessee's SB 2371 defined the felony offense of advertising "commercial sexual abuse of a minor" which a person commits if he or she "knowingly sells or offers to sell an advertisement that would appear to a reasonable person to be for the purpose of engaging in what would be a commercial sex act of a minor." The law prohibited a defense of ignorance of the minor's age. A violation of SB 2371 could result in up to 15 years in prison and a minimum fine of $10,000.  SB 2371 was scheduled to take effect on July 1, 2012.

Backpage.com is a classified advertisements website with one section of its website dedicated to adult services. In 2010, Tennessee State Attorneys General sent a letter to Backpage.com demanding that the website remove its "adult services" section. Backpage.com did not comply with this initial demand. In 2011, the National Association of Attorneys General ("NAAG") publically released a second demand letter to Backpage.com. This second letter again demanded removal of Backpage.com's adult section; it also requested detailed information from Backpage.com in "lieu of a subpoena." 

On June 27, 2012, Backpage.com brought suit in the U.S. District Court for the Eastern District of Tennessee against Tennessee State Attorney General Robert E. Cooper, Jr., and each of the state's 31 district attorneys to prevent enforcement of SB 2371. In its initial complaint, Backpage.com argued that the law violates the Communications Decency Act of 1996, 47 U.S.C. § 230, the First and Fourteenth Amendments, and the Commerce Clause of the United States Constitution. Backpage.com contended that SB 2371 violated § 230 as it would treat Backpage.com as the publisher of information which was provided by another content provider. In its First and Fourteenth Amendment argument, Backpage.com argued that SB 2371 was unconstitutional under the as it is overly broad in its restriction of free speech. In its Commerce Clause argument, Backpage.com argued that SB 2371 places an undue burden on interstate commerce.

The same day, on June 27, 2012, Backpage.com filed a Motion for Temporary Restraining Order and Preliminary Injunction to prevent enforcement of SB 2371. The Motion contended that SB 2371 would affect millions of online providers and would violate the immunity 47 U.S.C. § 230 granted to online publishers against third-party content.

On July 26, 2012, Cooper and the other defendants filed a response in opposition to Backpage.com's Motion for Preliminary Injunction. Defendants argued that SB 2371 was not preempted under 47 U.S.C. § 230 because it does not apply exclusively to internet usage, while § 230 applies only to internet communications. Further, defendants argued that SB 2371 did not prohibit the posting of advertisements "that would appear to a reasonable person to be for the purpose of engaging in a commercial sex act with a minor" but, instead, criminalized only the selling or offering for sale of such advertisements. The key difference, they argued, is that SB 2371 permits the posting of such advertisements so long as Backpage.com does not charge money or offer to charge money in exchange for posting them. In addressing the First and Fourteenth Amendment argument, the response argued that the advertisements were unlawful and therefore not considered protected speech; they also argued that the law was not overly broad or unconstitutionally vague. In its Commerce Clause argument, defendants argued that illegitimate commerce -- such as the money made from the illegal advertisements -- is not protected. 

On August 29, 2012, the court held a hearing on Backpage.com's motion, and on January 3, 2013, the court granted Backpage.com's Motion and issued a Temporary Restraining Order enjoining enforcement of SB 2371. United States District Court Judge John T. Nixon stated that Backpage.com was likely to succeed on all of its claims as SB 2371 was likely preempted by 47 U.S.C. § 230 and that it likely violated the First and Fourteenth Amendment, and the Commerce Clause of the Constitution.

On March 27, 2013, the court granted a motion by Backpage.com to convert the temporary injunction into a permanent injunction; Cooper and the other defendants did not oppose the motion. The court further found that no disputed factual issues remained and that summary judgment for Backpage.com was proper. United States District Court Judge John T. Nixon reiterated that Backpage.com was likely to succeed on the merits of its claims because: (1) SB 2371 was likely preempted by 47 U.S.C. § 230; (2) SB 2371 likely violated the First and Fourteenth Amendment because it was vague, overly broad, and not narrowly tailored; and (3) SB 2371 likely violated the Commerce Clause.

Craigslist is a classified advertisements website with one section of its site dedicated to housing. With a simple design that has not been significantly updated since its creation, craiglist allows users to post (among other things) apartment rental listings. In order to make the material on craigslist more user-friendly, PadMapper takes the information from craigslist's apartment listings and plots these on an easily searchable map, adding search filters. 3taps is a startup committed to collecting and distributing public data, which partnered with PadMapper to assist with its access to the apartment information on craigslist.

In response to their use of craigslist's listings, craigslist sent PadMapper a cease and desist letter. After PadMapper refused to comply, craigslist filed a complaint in the U.S. District Court for the Northern District of California on July 20, 2012, against PadMapper and 3Taps. In its complaint, craigslist asserted ten claims for relief, including contract (asserting breaches of craigslist's terms of use), copyright, and trademark/unfair competition claims.

3taps answered the complaint on September 24 and filed a counterclaim, asserting claims of antitrust violations, unfair competition, and interference with economic advantage. Overall, 3taps' defense and counterclaims focused on the premise that the facts drawn from craigslist's website are not craigslist's property, but in public domain, and that craigslist has maintained an unlawful monopoly through sham lawsuits, copyright misuse, improperly restrictive terms of use, and "ghosting." In its answer on October 30, PadMapper raised similar counterclaims alleging anticompetitive conduct by craigslist.

Craigslist filed a first amended complaint on November 20, 2012. In this amended complaint, craigslist added seven additional claims, for a total of 17. The claims were as follows (with new claims in italics)

1. Trespass: Defendants have gained unlawful access to and interfered with craigslist's computer system, servers, and network.
2. Breach of Contract: Defendants affirmatively accepted and agreed to be bound by the Terms of Use, which they willfully, repeatedly and systematically breached by accessing the craiglist website to copy and distribute the content posted therein.
3. Misappropriation: As competitors with craigslist, Defendants wrongfully accessed craigslist's website and computer systems to make craigslist's content available to their customers, constituting free-riding on craigslist's substantial investment of time, effort, and expense.
4. Copyright Infringement: Defendants reproduced and distributed the copyrighted material on the craigslist website without authorization from the copyright holder, craigslist.
5. Contributory Copyright Infringement (against 3taps): 3taps provides its users with copies and derivative works of craigslist's copyrighted works without craigslist's consent, and knowingly permits its users to copy, reproduce, and prepare derivative works from the copyrighted works.
6. Federal Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in interstate commerce in connection with the sale or advertising of goods is likely to cause consumer confusion.
7. Federal False Designation of Origin: Defendants' unauthorized use of the CRAIGSLIST mark is likely to create the false and misleading impression that Defendants' products or services are provided or sponsored by craigslist.
8. Federal Dilution of a Famous Mark (against 3taps): CRAIGSLIST is a famous and distinctive mark, and 3taps' use of the mark is likely to cause dilution by blurring, particularly depleting the strength of the mark by impairing its distinctiveness.
9. Federal Cyberpiracy Prevention (against 3taps): 3taps' use of CRAIGGERS in the craiggers.com domain is confusingly similar to and dilutive of the famous, registered CRAIGSLIST mark.
10. California Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark in connection with the sale or advertising of goods/services in California is likely to cause confusion as to the source and/or sponsorship of the goods/services.
11. Common Law Trademark Infringement: Defendants' unauthorized use of the CRAIGSLIST mark is likely to cause confusion as to the source and/or sponsorship of the goods/services.
12. California Unfair Competition: Defendants have engaged in unfair business practices, injuring craigslist's business, reputation, and trademarks.
13. Violations of the Computer Fraud and Abuse Act: Defendants accessed craigslist's computers and servers without authorization or in excess of authorization and obtained valuable information in transactions involving interstate or foreign communications.
14. California Comprehensive Computer Data Access and Fraud Act: Defendants accessed and copied data from craigslist's computer systems and servers without authorization.
15. Aiding and Abetting Trespass (against 3taps): 3taps has encouraged and facilitated access to craigslist's computers by supporting the collection, transfer, and storage of craigslist's content.
16. Aiding and Abetting Misappropriation (against 3taps): 3taps has knowledge that the time-sensitive "scraped" craigslist content they provide PadMapper is to compete with craigslist, therefore aiding PadMapper's misappropriation.
17. Accounting: As Defendants have benefited financially as a result of their misconduct at craigslist's expense, craigslist is entitled to a full accounting to determine the amount of money due to craigslist.

In response, PadMapper and 3taps amended their counterclaims on December 21. PadMapper updated its counterclaims to include (attempted) illegal maintenance of a monopoly in violation of the Sherman Act and California unfair business practices, and to seek declaratory relief for noninfringement of craigslist's copyrights. 3taps alleged similar counterclaims, including multiple monopoly and contract claims under the Sherman Act, California unfair competition, and interference with economic advantage.

PadMapper and 3taps also filed motions to dismiss on December 21, 2012. PadMapper, which first filed a motion to dismiss on October 30, 2012, amended this motion to dismiss craigslist's claims for trespass (claim 1), breach of contract (2), federal trademark infringement (6), federal false designation of origin (7), California trademark infringement (10), and common law trademark infringement (11). PadMapper argued that the Copyright Act preempts the breach of contract claim and that craigslist failed to state a trespass claim against PadMapper. PadMapper also argued that the four trademark claims are precluded under the U.S. Supreme Court's decision in Dastar v. Twentieth Century Fox Film, which narrowed the scope of the Lanham Act so not to cover claims where the core issue is a copyright claim, primarily the improper reproduction of copyrighted material.

3taps moved to dismiss craigslist's claims of copyright infringement (claim 4), contributory copyright infringement (5), violations of the Computer Fraud and Abuse Act (13), and California Comprehensive Computer Data Access and Fraud Act (14). With respect to the copyright claims, 3taps argued that craigslist has no standing to assert copyright infringement of user-generated content and its asserted copyright registrations are invalid. 3taps also argued that the statutory elements of the CFAA and California statute could not be satisfied, as establishing unauthorized access requires proof of hacking which craigslist judicially admitted did not occur.

In an opposition filed on January 31, 2013, craigslist reasserted the sufficiency of its pleadings and the validity of its copyrights. PadMapper and 3taps replied in support of their respective motions to dismiss on February 13.

On February 8, 2013, noting the complexity of the lawsuit, craigslist filed a motion to bifurcate and stay Defendants' amended counterclaims pending resolution of craigslist's claims. Craigslist argued that the counterclaims would be made moot or significantly narrowed if craigslist prevailed on its claims, and consideration of the antitrust counterclaims in conjunction with craigslist's claims would increase the legal and factual complexity of the case, delaying the proceedings. PadMapper and 3taps both opposed this motion on March 1. The defendants argued that the claims at issue are intertwined and would not be rendered moot if craigslist prevails, such that bifurcation would be inappropriate. The defendants further argued that a decision on bifurcation would be premature, and a stay of discovery would result in prejudice. In a reply on March 15, craigslist maintained that resolving craigslist's claims would at least streamline the antitrust claims, while the balance of potential prejudice weighs heavily towards bifurcation. Craigslist also argued that the motion was not premature and the bifurcation should occur before the start of discovery.  

On April 29, 2013, Judge Charles Breyer issued an order granting in part and denying in part the defendants' motions to dismiss, and granting craigslist's motion to bifurcate.  The district court denied 3taps' motion to dismiss the Computer Fraud and Abuse Act and California Comprehensive Computer Data Access and Fraud Act claims, noting that the defendant's continued access after clear statements regarding authorization in the cease and desist letters and terms of use sufficiently constitutes unauthorized access under these statutory provisions. The Court also denied PadMapper's motion to dismiss the trespass claim and the breach of contract claim, which it it ruled was not preempted by the Copyright Act. PadMapper's motion to dismiss the trademark claims was also denied, as the Court held that they were not precluded by Dastar. With respect to the copyright claims, the Court held that craigslist sufficiently established the originality of the compilation of the posts to warrant copyright protection, even in the individual posts themselves, and sufficiently registered copyright for this content.

However, the Court ruled that craigslist was the exclusive licensee of this content only from July 16, 2012 through August 8, 2012, during which period users were presented with a notice to click confirming craigslist's position as the exclusive licensee of the post. Outside of those weeks when the exclusive license confirmation statement was in use, the court found that craigslist could not sue for copyright infringement. Accordingly, the Court granted the motions to dismiss the copyright claims with respect to user-created posts submitted before July 16 or after August 8, 2012. Lastly, the Court concluded that "the likelihood of streamlining discovery for and adjudication of the antitrust counterclaims based on the outcome of Craigslist's claims-even if those counterclaims must ultimately proceed-warrants bifurcation," and therefore granted craigslist's motion to bifurcate and stay discovery on the antitrust counterclaims.

Peteski Productions is the copyright owner of the television show the Dr. Phil Show, and Gawker Media is the owner of the sports news website Deadspin.com. This dispute concerns coverage by both Deadspin.com and the Dr. Phil Show addressing the hoax pulled by Ronaiah Tuiasosopo on Notre Dame football quarterback Manti Te'o. The hoax in part involved Tuiasosopo speaking with Te'o by telephone and pretending to be a Stanford University student by the name of Lennay Kekua. 

The complaint alleges that Deadspin copied two episodes of the Dr. Phil Show wherein host Phil McGraw interviewed Tuiasosopo, asking him to explain the hoax. The interview extended over two aired episodes, with a "cliffhanger" at the end of the first episode suggesting that Tuiasosopo would perform the "Kekua" voice in the continuation of the interview in the second episode. According to the complaint, the interview was an "exclusive," and Tuisasosopo agreed not to appear in any other media between the time of the interview with McGraw and the airing of the interview on the Dr. Phil Show. 

Peteski alleges that Deadspin reported about the interview in three posts on January 30 and 31, 2013, with two posts before and one immediately after the first Dr. Phil Show episode; in the third post, Deadspin noted that the episode ended on a cliffhanger and encouraged readers to read Deadspin's blog the following day. According to the complaint, Deadspin then obtained a copy of the second Dr. Phil Show episode and posted an excerpt of the McGraw interview with Tuiasosopo (described as the "heart of Episode 2") on its website "not later than 9:30 a.m. Eastern Standard Time, hours before the Dr. Phil Show aired to over 98% of its viewers." The complaint appears to be referencing this post by Deadspin. The complaint seeks statutory damages, attorneys' fees, and an injunction barring the video excerpt.

On January 25, 2013, Dr. Amy Tuteur, an obstetrician-gynecologist residing in Massachusetts, filed suit in federal court against Gina Crosley-Corcoran, a resident of Illinois, based upon a dispute arising out of blogs written by each individual: The Skeptical OB, by Tuteur, and The Feminist Breeder, by Crosley-Corcoran. The case is centered on DMCA takedown notices issued by Crosley-Corcoran to the hosts of Tuteur's blog.

According to the Complaint, Tuteur and Crosley-Corcoran engaged in a heated debate through the medium of their respective blogs on the dangers and merits of home births. This debate escalated to a point at which Crosley-Corcoran allegedly published a post entitled "This One's For You, 'Dr.' Amy," which included a photograph of Crosley-Corcoran extending her middle finger, with the accompanying comment, "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, sitting at my dining room table[.]" Tuteur responded by publishing the photo of Crosley-Corcoran on her own website in a post entitled "Pounding the table," in which Tuteur argued that the photo was an "outstanding example of table pounding" and accusing Crosley-Corcoran of being afraid to answer questions posed by Tuteur.

Crosley-Corcoran then allegedly responded with a series of efforts to compel the removal of the photograph from Tuteur's website, including a cease-and-desist letter and two Digital Millennium Copyright Act takedown notices directed to Tuteur's website hosts. Tuteur claimed that these takedown notices resulted in service interruptions and her website hosts terminating her contract with them. Tuteur also alleged that Crosley-Corcoran acted in bad faith in sending the takedown notices with the motive of interfering with the publication of critical statements on Tuteur's blog, claiming that Crosley-Corcoran was subjectively aware or should have been aware that Tuteur's use of the photograph was either (1) authorized by the text with which Crosley-Corcoran originally presented the photo, or (2) a "self-evident non-infringing fair use under 17 U.S.C. § 107."

Based on these allegations, Tuteur's complaint asserts two claims: (1) a claim under 17 U.S.C. § 512(f) for knowing and material misrepresentations in Digital Millennium Copyright Act takedown notices; and (2) a claim for tortious interference with Tuteur's contractual relationships with her website hosts. Tuteur sought damages, attorneys' fees, and an injunction barring Crosley-Corcoran and/or her agents from pursuing any copyright claim related to the "finger" photograph.

On March 5, 2013, Crosley-Corcoran moved to dismiss the complaint for lack of personal jurisdiction, alleging that she did not have sufficient contacts with Massachusetts to justify filing suit against her there, and arguing that neither the sending of a cease-and-desist letter into Massachusetts nor allegations of harm suffered in Massachusetts were sufficient.

In an opposition filed on April 5, 2013, Tuteur asserted that Crosley-Corcoran knew that Tuteur lived in Massachusetts and had intentionally targeted her allegedly wrongful conduct at Tuteur's activities there. Tuteur argued that Crosley-Corcoran's failure to file an actual  copyright lawsuit over the photo was evidence that the takedown notices were intended to interfere with Tuteur rather than defend Crosley-Corcoran's copyrights. Accordingly, Tuteur argued that Crosley-Corcoran's purpose to cause harmful effects in Massachusetts, together with harm actually caused there, was sufficient for the federal court in Massachusetts to exercise personal jurisdiction over her. Alternatively, Tuteur requested the right to take limited discovery on the jurisdictional issue.

On April 10, 2013, the district court issued an order on the motion to dismiss. While the court acknowledged that Tuteur's claims were premised on Crosley-Corcoran's takedown notices, it characterized the core issue in the jurisdictional dispute as to 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." The court also questioned whether Tuteur could succeed in demonstrating "conduct uniquely or expressly aimed at the forum state," i.e., Massachusetts.

Ultimately, however, the court opined that the case might be more properly resolved on its merits than the "thorny issue of internet-based personal jurisdiction," because the "court seriously question[ed] whether Tuteur ha[d] 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) [of] 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 SkepticalOB website. ... 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 ..., or as she suggests at one point, a defense of implied license ... . 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.

Tuteur’s tortious interference claim would also seem vulnerable on similar grounds. 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.

Accordingly, the court ordered Tuteur to show cause with 21 days why the complaint should not be dismissed on its merits and/or jurisdictional grounds.

Update:

May 1, 2013: Tuteur filed a memorandum of law with the court in response to the court's order to show cause. In the memorandum, Tuteur asserted that a Section 512(f) claim is available when a party filing a DMCA takedown notice misrepresents that the targeted content is infringing, and that misrepresentations of infringement are independent of whether there are misrepresentations as to ownership or authorization. Accordingly, Tuteur argued, Crosley-Corcoran's takedown notices gave rise to a Section 512(f) claim because she allegedly knew that she had no viable claim of infringement at the time the notices were sent. Tuteur specifically argued that her use of the "finger photo" was protected as a fair use. On the jurisdictional issue, Tuteur argued that (1) Crosley-Corcoran's sending of takedown notices directed at a blog that Crosley-Corcoran knew was operated in Massachusetts sufficed to subject her to specific jurisdiction in Massachusetts, and (2) Crosley-Corcoran's operation of her own website, which had a widespread presence and specific contacts with Massachusetts users, was sufficient for the court to exercise general jurisdiction over her in Massachusetts.

On the same day, the Electronic Frontier Foundation and the Digital Media Law Project (disclosure: the DMLP hosts this database) filed an amicus brief in the case, urging the court to recognize (1) that a Section 512(f) claim can be based on misrepresentations as to infringment alone, and (2) that a party sending a takedown notice must consider questions of fair use before they may form a good faith belief that content is infringing.

May 9, 2013: Crosley-Corcoran filed a response to Tuteur's May 1 memorandum, arguing that the district court's analysis in its order to show cause was correct, and more specifically that: (1) Tuteur had failed to plead that the takedown notices caused the removal of her blog, thus failing to plead damages as required for a Section 512(f) claim; (2) Section 512(f) requires proof of a lack of subjective good faith, such that evidence that the defendant honestly but unreasonably relied upon a meritless interpretation of the law is not sufficient; and (3) Tuteur's tortious interference claim was preempted by Section 512(f).

May 10, 2013: The Motion Picture Association of America filed an amicus brief, in which it argued that "[l]iability under § 512(f) arises only where the copyright owner has actual, subjective knowledge that it is making a material misrepresentation that the use of the copyrighted work is infringing." Thus, the MPAA argued, liability under Section 512(f) could not be premised on a failure to consider fair use of the work allegedly infringed or reliance upon an unreasonable interpretation of the law. In particular, the MPAA asserted that because fair use is characterized as an affirmative defense in the First Circuit, it should not be the copyright holder's burden to evaluate whether the fair use doctrine would make a particular use "authorized by law." The MPAA further argued that imposing the burden upon copyright holders to conduct a complex fair use analysis before asserting their rights under the Digital Millennium Copyright Act would be unjust and frustrate the purposes of the statute.