MEMORANDUM AND ORDER ON SHOW CAUSE RESPONSE AND DEFENDANT'S MOTION TO DISMISS

RICHARD G. STEARNS, District Judge.

The choice of birthing techniques is not the most obvious subject for a war of polemics. But the wisdom of midwifery triggered a ferocious battle of the blogs culminating in this lawsuit pitting Amy Tuteur, a resident of Massachusetts, and former physician, against defendant Gina Crosley-Corcoran, a doula (midwife), and resident of Illinois. Tuteur, who authors several blogs, including The Skeptical OB,1 is a scathing critic of home birthing, while Crosley-Corcoran, the author of the blog TheFeministBreeder, is a proponent of "natural" birth.

After a particularly bitter internet exchange with Tuteur on December 13, 2012, Crosley-Corcoran posted a photograph of herself on her blog in a graphic hand pose (digitus impudicus) underscored with a caption informing readers that she was giving Tuteur "something else to go back to her blog and obsess about." Rising to the bait, Tuteur copied the photo and posted it on The Skeptical OB, without Crosley-Corcoran's explicit permission.

On December 16, 2012, Kim Bilbrey, an attorney for Crosley-Corcoran, sent a cease-and-desist notice by email to Tuteur alleging copyright infringement and demanding that Tuteur remove Crosley-Corcoran's photo from her blog.2 According to Bilbrey, she sent the notice by email because she "had no physical address for Ms. Tuteur, only an email address. [She] did not know that Ms. Tuteur was located in Massachusetts." Bilbrey Aff. ¶ 6 — Dkt. # 13-11. Bilbrey also sent BlueHost, Tuteur's web server in Provo, Utah, a "takedown notice" pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c)(3). On December 17, 2012, Blue-Host warned Tuteur that "[f]ailure to eliminate or disable access to such alleged infringing material within [48 hours] could result in suspension or termination of your website." Compl. ¶ 37. Tuteur temporarily removed the photo, then thought better of the idea, and reposted it. On December 22, 2012, Tuteur filed a counter notice with BlueHost protesting Crosley-Corcoran's claim of copyright infringement.3 On January 18, 2013, BlueHost washed its hands of the snowballing disputation and notified Tuteur and Crosley-Corcoran that it was up to either or both of them "to pursue legal action."4 Dkt. # 39-1. Tuteur responded by shifting The Skeptical OB to a new Internet Service Provider (ISP), DaringHost, and restoring Crosley-Corcoran's photo. Crosley-Corcoran rejoined by sending DaringHost a takedown notice. DaringHost informed Tuteur of the takedown demand on January 21, 2013. Tuteur submitted a counter notice, although she removed Crosley-Corcoran's photo from her website "to avoid further interruption of public access to The Skeptical OB." Compl. ¶ 51.

While the blogs raged, Crosley-Corcoran's new counsel, Jake Marcus, reached out to Tuteur in an attempt to forge a truce. Marcus received a response from Tuteur's husband, Michael Tuteur, the Chair of the Litigation Department at Foley & Lardner LLP, a large Boston law firm. Michael Tuteur told Marcus that while he was representing his wife, she was not a client of his firm. Marcus Aff. ¶¶ 5-8 — Dkt. # 13-7. Marcus stated that Crosley-Corcoran would willingly walk away from the fight if Amy Tuteur would remove her picture from the website. Marcus also proposed that the two combatants agree to abstain from any future references to one another in their blogs.5 Spurning the offer, Tuteur filed this lawsuit on January 25, 2013.6

In her two-count Complaint, Tuteur alleges that Crosley-Corcoran made a material misrepresentation of infringing activity in violation of 17 U.S.C. § 512(f). She also alleges tortious interference by Crosley-Corcoran with the advantageous contractual relationships that she enjoyed with her ISPs. Both counts hinge on the takedown notices sent by Crosley-Corcoran to Blue-Host and DaringHost, notices that Tuteur alleges were animated by "improper motives and/or improper means." Compl. ¶ 78. Crosley-Corcoran, for her part, moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2). She maintains that as a resident of Illinois whose only connection to Massachusetts is the cease-and-desist email, she lacks the "minimum contacts" necessary to subject her to in personam jurisdiction in this forum.

On April 10, 2013, 961 F.Supp.2d 329, 2013 WL 1450930 (D.Mass.2013), the court issued an Order directing Tuteur to show cause why her Complaint should not be dismissed on the merits or on jurisdictional grounds. Tuteur filed her response on May 1, 2013. That same day, the Electronic Frontier Foundation (EFF)7 and the Digital Media Law Project (DMLP)8 sought leave to file amici curiae briefs in partial support of Tuteur's Complaint. Shortly after Crosley-Corcoran filed a response, the Motion Picture Association of America, Inc. (MPAA), asked to file an amicus brief. Leave to file the briefs was granted. The court heard oral argument from the parties and representatives of the amici on July 1, 2013.

Jurisdiction

"On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists." Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir.2009). However, where, as here, "the district court's disposition as to the personal jurisdiction question is based on affidavits and other written materials in the absence of an evidentiary hearing, a plaintiff need only to make a prima facie showing that [the defendant is] subject to personal jurisdiction." Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed.Cir. 2003); see also Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.2008) ("Because the district court did not hold an evidentiary hearing but credited the plaintiff's evidentiary submissions, we construe the court's ruling as employing the prima facie method."). The court, in evaluating whether a plaintiff has met her burden, "must accept the uncontroverted allegations in the plaintiff's complaint as true and resolve any factual conflicts in the affidavits in the plaintiff's favor." Elecs. for Imaging, 340 F.3d at 1349.

Tuteur maintains that the court has specific personal jurisdiction over Crosley-Corcoran under section (a) of the Massachusetts Long-Arm Statute — the transacting business section — because: Crosley-Corcoran solicits legal fees on her blog; offers paid subscriptions to her blog; and sells items from her virtual midwifery store to customers in Massachusetts.9 Tuteur also more persuasively asserts jurisdiction under section (c) of the Long-Arm Statute, alleging that Crosley-Corcoran unleashed a tort — "a crusade for the express purpose of squelching [Tuteur's] speech" — the effects of which were felt by Tuteur in Massachusetts. Pl.'s Mem. at 2; see also Compl. ¶¶ 52-62.10

"The proper exercise of specific in personam jurisdiction hinges on satisfaction of two requirements: first, that the forum in which the federal district court sits has a long-arm statute that purports to grant jurisdiction over the defendant; and second, that the exercise of jurisdiction pursuant to that statute comports with the strictures of the [Due Process Clause of the] Constitution." Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994). The Fourteenth Amendment's concern for fundamental fairness is encapsulated in the jurisdictional requirement that there be at least some "minimum contacts" between the defendant and the forum state "such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

In judging minimum contacts, the Supreme Court has held that the "proper focus [is] on the relationship among the defendant, the forum, and the litigation." Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).11 The test has three parts. The so-called "effects" test derived from Calder provides that "a defendant's tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes a prima facie showing that the defendant's acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt of which was suffered — and which the defendant knew was likely to be suffered — [in the forum state]."11 Johnson v. Arden, 614 F.3d 785, 796 (8th Cir.2010), quoting Lindgren v. GDT, LLC, 312 F.Supp.2d 1125, 1132 (S.D.Iowa 2004); see also Astro-Med, Inc., 591 F.3d at 10.

For policy reasons, most jurisdictions have held that cease-and-desist letters — like those sent by Crosley-Corcoran's attorneys — absent additional purposeful acts directed to the contested forum, are inadequate to establish jurisdiction. See Avocent Huntsville Corp. v. Aten Int'l Co., Ltd., 552 F.3d 1324, 1333 (Fed.Cir.2008) (for the exercise of personal jurisdiction in an action for declaratory judgment in a patent action, to comport with fair play and substantial justice there must be activities directed at the forum besides letters threatening suit); Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 762-763 (2d Cir. 1983) (cease-and-desist letter sent by a nonresident defendant to plaintiff in New York alleging that the latter's use of a trademark violated federal law did not constitute a "transaction of business" sufficient to support the exercise of long-arm jurisdiction); Accessories Ltd. of Maine, Inc. v. Longchamp U.S.A., 170 F.Supp.2d 12, 15 (D.Me.2001) (in an infringement case, the sending of a cease-and-desist letter into a forum is generally not considered sufficient in and of itself to establish personal jurisdiction under the "effects test"); Wise v. Lindamood, 89 F.Supp.2d 1187, 1192 (D.Colo.1999) (same, setting out a majority of cases in accord).

The leading First Circuit case analyzing cease-and-desist letters through the lens of personal jurisdiction, Nova Biomedical Corp. v. Moller, 629 F.2d 190 (1st Cir. 1980), takes a more nuanced view. It holds that the sending of a patent infringement letter threatening suit "can, in certain circumstances, constitute the transaction of business within the meaning of the Massachusetts' long arm statute," but "[w]hether a patentee is thereafter subject to jurisdiction will depend on whether he possesses sufficient contacts with the forum to satisfy due process." Id. at 197; see also GSI Lumonics, Inc. v. BioDiscovery, Inc., 112 F.Supp.2d 99, 110 (D.Mass. 2000). In Nova, Judge Bownes found that prior to sending the cease-and-desist letter, the defendant was engaged in patent-related activity in Massachusetts, including the selling of products involving the patent-in-suit and the entering of a cross-licensing agreement with another Massachusetts corporation. The Court held that these additional patent-related activities in the forum sufficed to satisfy due process. 629 F.2d at 195.

While under Nova, Crosley-Corcoran's cease-and-desist letter would by itself be insufficient to establish personal jurisdiction in Massachusetts, her invocation of the DMCA takedown process to improperly remove protected content from Tuteur's (a Massachusetts resident) website adds the element of "more" to the equation. (I say "improper" not to prejudge the issue, but because I am obliged to accept the allegations of the Complaint in this respect as true. See Phillips, 530 F.3d at 26, quoting Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42, 51 (1st Cir.2002) ("The court `must accept the plaintiff's (properly documented) evidentiary proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing, and construe them in the light most congenial to the plaintiffs jurisdictional claim.'")). Tuteur alleges that Crosley-Corcoran contacted the ISPs as part and parcel of a calculated campaign to silence her criticisms of Crosley-Corcoran's views about home birthing.12 Tuteur claims that Crosley-Corcoran's means to that end was to interfere with Tuteur's website by literally disconnecting Tuteur's ability to express her views. While it appears that Crosley-Corcoran would have had reason to suspect that Tuteur resided in Massachusetts in February of 2011 — when Crosley-Corcoran asked on her Facebook page if anyone knew where Tuteur lived, blogee Chic Robertson responded that "the white pages confirms an Amy Tuteur living in Sharon, MA — by the time that she issued the second takedown notice, Crosley-Corcoran had definite confirmation of Tuteur's Massachusetts domicile."13

The case most firmly advocating for jurisdiction under the tortious prong of the Massachusetts Long-Arm Statute is Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063 (10th Cir.2008). In Dudnikov, the court found that a British company's refusal to remove a Notice of Claimed Infringement (NOCI) after the Colorado plaintiffs agreed to desist selling infringing fabric on eBay affirmatively interfered with plaintiffs' business, thus vesting jurisdiction in the Colorado courts.14 By wrongfully serving a takedown notice on a resident of Massachusetts, Crosley-Corcoran "purposefully and voluntarily direct[ed] [her] activities toward the forum so that [she] should expect, by virtue of the benefit [she] receive[d], to be subject to the court's jurisdiction based on these contacts." U.S. v. Swiss American Bank, Ltd., 274 F.3d 610, 624 (1st Cir.2001).

Takedown Notices

Section 512 of the DMCA expressly limits the liability of an ISP for copyright infringement by its subscribers. In adopting section 512, Congress intended to craft a mechanism that would "balance the need for rapid response to potential infringement with the end-users [sic] [the alleged infringers] legitimate interests in not having material removed without recourse." S. Rep. 105-190, at 21 (1998). The mechanism works as follows. A party with a good faith belief that posted material infringes a copyright in which he or she (or it) has an ownership interest, may file an extrajudicial "takedown" notice with the ISP. The notice must contain the elements listed in section 512(c)(3), among them the identification of the copyrighted work and the infringing material. The copyright owner must also affirm that she has a "good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," and that the information contained in the notice is accurate. Section 512(c)(3)(A)(v) & (vi). Upon receiving a takedown notice, the ISP must remove the allegedly infringing material or disable access to it. Id. See generally Frederick W. Mostert, Martin B. Schwimmer, Notice and Takedown for Trademarks, 101 TMR 249 (2011). Additionally, the ISP must notify the subscriber of the removal. 17 U.S.C. § 512(g)(2)(A).

As an antidote for potential abuse of the expedited takedown procedure, Congress included a counter-notification provision, 17 U.S.C. § 512(g)(3), that permits the accused infringer to file an objection with the ISP and, more to the immediate point, imposes liability on "[a]ny person who knowingly and materially misrepresents under this section ... that material or activity is infringing." Id. Congress intended the statutory counter-notification and "put-back" procedures to give protection to "third parties' interests in ensuring that material not be taken down." H.R. Rep. 105-551(II), at 59 (1998). Upon receipt of a counter notification, the ISP must forward a copy to the copyright holder and inform her "that it will replace the removed material or cease disabling access to it in 10 business days." 17 U.S.C. § 512(g)(2)(B). The ISP must then repost the material online, unless it receives notice that the copyright holder has filed for a restraining order with a court of competent jurisdiction. See 17 U.S.C. § 512(g)(2)(C).15

In support of her motion to dismiss, Crosley-Corcoran states that prior to sending the takedown notices she sought the advice and assistance of two attorneys — Bilbrey and Marcus — each of whom has submitted a supporting affidavit. Bilbrey (who represented Crosley-Corcoran briefly at the beginning of this dispute), states that she helped Crosley-Corcoran draft the original cease-and-desist letter sent to Tuteur. Bilbrey Aff. ¶ 5. Crosley — Corcoran's second attorney, Marcus, states that he considered — and rejected-Tuteur's argument that her posting of the ignominious photo constituted "fair use." Marcus Aff. ¶ 7. Crosley-Corcoran, for her part, states that she "believed then, and believes now that this was a completely legitimate, legal, and appropriate use of a DMCA takedown notice." Crosley-Corcoran Aff. ¶ 18.16

The issue boils down to the proper test of what is required of a copyright owner prior to the filing of a takedown notice. Tuteur and amici EFF/DMLP advocate requiring the copyright owner to investigate any possibly applicable fair use or other affirmative defense that the alleged infringer might have before filing the notice. Crosley-Corcoran and amicus MPAA would condition liability under section 512(f) on proof of a copyright owner's actual, subjective belief that he or she is making a material misrepresentation of infringement. See Dkt. # 34 at 8-11; EFF/ DMLP Br. at 7-10-Dkt. # 35-1.

The case most closely in point is Rossi v. Motion Picture Ass'n of Am., Inc., 391 F.3d 1000 (9th Cir.2004). Plaintiff Rossi operated a website that advertised "Full Length Downloadable Movies" and posted graphics for copyrighted movies. Invoking the DMCA, the defendant MPAA sent notices of infringing conduct to Rossi and his ISP. Rossi sued the MPAA for tortious interference with advantageous contractual relations. Id. at 1002. Rossi argued that under any objective standard, the MPAA could not have formed a "good faith belief" that his site was distributing infringing material because "a reasonable investigation" would have revealed that users could not download movies from the site. Id. at 1003. The Ninth Circuit rejected Rossi's reading of the statute. The Court of Appeals held that the "interpretive case law and the statutory structure [of the DMCA] support the conclusion that the `good faith belief requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective, standard." Id. at 1004 (emphasis added).

Id. at 1004-1005. The Ninth Circuit specifically rejected the imposition of an "objective standard of review for gauging the reasonableness" of a copyright owner's "conduct in notifying" parties of an "allegedly infringing website." Id. at 1004; see also Cabell v. Zimmerman, 2010 WL 996007, at *4-5 (S.D.N.Y. Mar. 12, 2010) (adopting Rossi); Third Educ. Group, Inc. v. Phelps, 675 F.Supp.2d 916, 927 (E.D.Wis.2009) (same); UMG Recordings, Inc. v. Augusto, 558 F.Supp.2d 1055, 1065 (C.D.Cal.2008), aff'd on other grounds, UMG Recordings, Inc. v. Augusto, 628 F.3d 1175 (9th Cir.2011) (same); Dudnikov v. MGA Entm't, Inc., 410 F.Supp.2d 1010, 1013 (D.Colo.2005) (same).

In its brief, the MPAA makes the persuasive point that there are sound structural and policy reasons to believe Congress did not intend the DMCA to require that every takedown notice be preceded by a consideration of the possible applicability of fair use, upon penalty of a suit under § 512(f) if such an inquiry is not made. As an affirmative defense, fair use serves to excuse a use that otherwise is infringing, not to create an affirmative right of use. Moreover, fair use requires an equitable balancing of multiple factors, including four factors set out in the text of Section 107. The Supreme Court has emphasized that the fair use analysis does not lend itself to "bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis." Campbell [v. Acuff-Rose Music, Inc.], 510 U.S. 569, 577 [114 S.Ct. 1164, 127 L.Ed.2d 500 (1994)].

MPAA Br. at 8.

Tuteur, along with the EFF and DMLP, argue that a consideration of fair use is required to give meaning to the owner's declaration that the appropriation of the copyrighted material is not "authorized by the copyright owner, its agent, or the law." 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). The argument relies almost exclusively on a district court's order denying a motion to dismiss in Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D.Cal. 2008). In Lenz, the plaintiff mother made a short home movie featuring her toddler son dancing in her kitchen to music by the artist Prince. The mother posted the 29-second clip on an Internet video hosting site, YouTube.com. Several months later, Universal Music Publishing Group notified YouTube that it owned the copyright on the musical score. YouTube took down the video and Lenz sued Universal Music Group under section 512(f). Universal moved to dismiss. The court denied Universal's motion, ruling that "[e]ven if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with `a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law' [as required by 17 U.S.C. § 512(c)(3)(A)(v)], the owner must evaluate whether the material makes fair use of the copyright." Id. at 1154-1155.

Lenz, a district court opinion, has far less traction than the Ninth Circuit's opinion in Rossi. As the MPAA points out, in its most recent iteration (denying cross-motions for summary judgment), the Lenz court substantially retreated from its earlier ruling, acknowledging that "in light of Rossi," the "mere failure to consider fair use would be insufficient to give rise to liability under § 512(f)," and that a plaintiff must show that the defendant "had some actual knowledge that its Takedown Notice contained a material misrepresentation." Lenz v. Universal Music Corp., 2013 WL 271673, at *6 (N.D.Cal. Jan. 24, 2013) (Lenz II).17

More compelling is the fact that, in enacting the DMCA, Congress did not require that a notice-giver verify that he or she had explored an alleged infringer's possible affirmative defenses prior to acting, only that she affirm a good faith belief that the copyrighted material is being used without her or her agent's permission.18 See 17 U.S.C. §§ 512(f) and 512(c)(3)(A)(v). There is a reason for this. To have required more would have put the takedown procedure at odds with Congress's express intent of creating an "expeditious[]," "rapid response" to "potential infringement" on the Internet. See 17 U.S.C. § 512(c)(i)(A)(iii); S. Rep. 105-190, at 21. Undoubtedly abuses will occur — as is the case with almost any system that permits legal self-help (although EFF and DMLP point to but a handful of examples). For these abuses Congress provided a remedy in section 512(f). If experience ultimately proves that the remedy is weighted too heavily in favor of copyright owners at the expense of those who seek to make "fair use" of another's intellectual property, the resetting of the balance is for Congress and not a court to strike.19

ORDER

Because, for present purposes, "a knowing and material misrepresentation" is adequately pled, defendant's motion to dismiss is DENIED.

SO ORDERED.