Famous CC-licensed novel taken down by SFWA

[Alexander Turcic]

Well if the headline isn't enough to make fresh milk sour, it appears that the Science Fiction and Fantasy Writers of America abused the 1998 Digital Millennium Copyright Act to justify this step. Quoting Cory Doctorow, whose Creative Commons-licensed novel "Down and Out in the Magic Kingdom" is among many works to be taken down from Scribd (Scribd is a place where people can publish documents online):

More importantly, many of the works that were listed in the takedown were written by the people who'd posted them to Scribd -- these people have been maligned and harmed by SFWA, who have accused them of being copyright violators and have caused their material to be taken offline. These people made the mistake of talking about and promoting science fiction -- by compiling a bibliography of good works to turn kids onto science fiction, by writing critical or personal essays that quoted science fiction novels, or by discussing science fiction. SFWA -- whose business is to promote science fiction reading -- has turned readers into collateral damage in a campaign to make Scribd change its upload procedures.

Meanwhile, in a follow-up notice, SFWA President Michael Capobianco responded to Cory's legitimate outburst of fury, apologizing for the "flawed" list of copyright-infringing book uploads and reiterating his association's well-meant intentions. Yeah, right.

Links:

• Takedown notice 1
• Takedown notice 2
• Down and Out in the Magic Kingdom on Scribd
• Down and Out in the Magic Kingdom removed from Scribd
• Science Fiction Writers of America abuses the DMCA (Boingboing)
• SFWA issues mistakenly broad DMCA takedown notice (Teleread)

Thanks Nate the great for the news!

[Robert Marquard]

In Baens Bar MutterOfDemons forum Rick Boatright adds some background info.

[nekokami]

There's been a lot of discussion about this online over the past few days. We've been discussing it here at MR too, in other threads (the current "end of literary art" thread, e.g.). My favorite "serious" discussion is at Making Light, but my favorite prediction of the results and followon discussion was by Steven Brust.

[pglaskowsky]

Yeah, SFWA screwed up by being far too casual in making its list and invoking the DMCA.

So a few documents were taken down that shouldn't have been.

But where's the outrage at Scribd for having published thousands of pirated books to begin with?

Scribd's been around nine or ten months now, and until last week, it pretended it didn't have to care that its users were uploading vast quantities of copyrighted documents without permission from their owners.

For example, Scribd user mondobeyondo uploaded a thousand or more copyrighted documents all by himself. Many of these were individually brought to Scribd's attention, but until they got the first DMCA notice, they just left them all in place.

Oh, you may say Scribd has no obligation to do anything until it gets DMCA notices. Not true. The DMCA requires that service providers such as Scribd take appropriate actions whenever they become aware of pirated content. See my blog (here) for more details.

After I posted that blog entry, and people such as Jerry Pournelle provided other specific references to obvious pirate activity on Scribd, Scribd responded by doing what it should have done months ago-- it enforced its terms of service and took down the content.

Everything uploaded by user mondobeyondo, for example, was taken offline. This included some perfectly legal material-- but Scribd had no choice. They knew that half or more of what the guy uploaded was illegal. They couldn't legally leave it there or lose their DMCA Safe Harbor protections. It wasn't practical for Scribd to verify the copyright status of every individual upload. So it all had to come down.

Scribd was just enforcing its terms of service, which says that users who repeatedly upload copyrighted material without permission will be terminated. It could have done this months ago-- most of mondobeyondo's documents dated back to May or June-- but hey, better late than never.

Now, do you suppose Cory Doctorow is going to get all huffy about how Scribd is evil? I doubt it. Doctorow doesn't believe in the concept of copyright at all, although he's willing to use it when it suits his political purposes.

I suspect Scribd is going to be a lot more careful in the future. Scribd is getting legal counsel from the Electronic Frontier Foundation, which is probably giving them pretty good advice about its duties under the DMCA and other laws. That's all anyone expects-- that Scribd should obey the law, which includes respecting intellectual property.

You people who've been flinging mud at SFWA should be ashamed of yourselves. There's no question SFWA screwed up, but their offense was pretty trivial compared with the rampant lawlessness at Scribd that SFWA was trying to deal with.

Where do you think all these books you like come from? The cobbler's elves, working at night while you sleep? Books come from authors, the vast majority of whom are writing because they need the money. Take away this opportunity for writers to make money and they will stop writing. Supply and demand isn't just a good idea, it's the law. Get used to it.

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[Liviu_5]

For whatever it's worth SFWA admitted it screwed up, disbanded its committee on e-piracy and formed a study group about the whole problem including the legal liability about issuing DCMA notices without merit.

The bottom line is that the major enablers of Scribd and similar sites, are all the tech and net companies (from your friendly ISP to Google and Yahoo), so first direct your outrage there not at Scribd if you are in such a mood.

[Nate the great]

Originally Posted by pglaskowsky

But where's the outrage at Scribd for having published thousands of pirated books to begin with?

Scribd's been around nine or ten months now, and until last week, it pretended it didn't have to care that its users were uploading vast quantities of copyrighted documents without permission from their owners.

Oh, you may say Scribd has no obligation to do anything until it gets DMCA notices. Not true. The DMCA requires that service providers such as Scribd take appropriate actions whenever they become aware of pirated content. See my blog (here) for more details.

I suspect Scribd is going to be a lot more careful in the future. Scribd is getting legal counsel from the Electronic Frontier Foundation, which is probably giving them pretty good advice about its duties under the DMCA and other laws. That's all anyone expects-- that Scribd should obey the law, which includes respecting intellectual property.

Scribd had no legal liability until they recieved a DMCA takedown notice from a copyright holder or the holder's agent. That is why they took nothing down. The law is quite explicit on this point.

Also, the email sent to Scribd was not even close to being a proper takedown notice. They could have ignored it.


Here is an example of a takedown notice:

http://wendy.seltzer.org/media/NFLAn...2007.02.13.txt


The SFWA email lacked the following stuff:

The xxx copyrights are infringed by the above material being made available for copying, through downloading, at the above location without authorization from the xxx.

3. Statement of authority:

I hereby certify under penalty of perjury that the information in this notice is accurate and that I am authorized to act on behalf of the xxx, the copyright owner of the intellectual property rights. I have a good faith belief that none of the materials or activities listed above have been authorized by the xxx, its agents, or the law.

We hereby give notice of these activities to you and request that you take expeditious action to remove or disable access to the material described above, and thereby prevent the reproduction and distribution of this material via your company's network.

We appreciate your cooperation in this matter. Please advise us regarding what actions you take.

Sincerely,

***********
Internet Investigator

on behalf of:
xxx

[pglaskowsky]

I know about SFWA's response; I covered that in my blog this morning (here). SFWA also said that it intends to form a new committee, which may or may not actually happen.

The notion that a service provider may ignore anything except a properly formatted DMCA notice is simply wrong. I gave a link to my Sunday blog post (here), which includes the specific language from the DMCA that disproves this notion. The law says that a service provider must not ignore a takedown notice, not that a service provider may ignore anything else.

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[nekokami]

There's a fairly simple technological method for checking the originality of written material -- it's much easier than "audio fingerprinting," for example. Commercial anti-plagiarism services like TurnItIn are able to provide reports that can tell you exactly what has been plagiarized, and where the material came from.

However, for TurnItIn to work, there has to be a reference site containing the content. If the publishers would submit all their digital works (that they want to protect) to TurnItIn, or provide an API to a similar service, they could reasonably require online sites such as Scribd to check content against such a database, just as Google is now being pressured into checking for the authorship of video content it accepts through YouTube. I think this would be a lot more constructive (and effective) than arguing about whose responsibility it is to police such sites.

[NatCh]

And if it, just incidentally, happened to mean that they were creating e-ditions of their books ... well, that's just a happy coincidence, isn't it?

[nekokami]

Exactly!

A possibly better alternative to TurnItIn is at http://www.copyscape.com -- this site also has a service that will monitor the web looking for content matching your source, and notify you if it finds it. So there's an incentive to make digital copies of content!

[NatCh]

That sounds even better! It's almost tailor made for publisher interest in this area.

[DMcCunney]

Originally Posted by pglaskowsky

Yeah, SFWA screwed up by being far too casual in making its list and invoking the DMCA.

So a few documents were taken down that shouldn't have been.

But where's the outrage at Scribd for having published thousands of pirated books to begin with?

I get outraged over deliberate piracy. I don't get outraged when a site hosts material it doesn't know was pirated.

Was Scribd aware that a lot of material it hosted was pirated, and did nothing about it because the material made the site more attractive?

If so, I'm outraged. But I don't know that's the case, and neither do you.

Now, do you suppose Cory Doctorow is going to get all huffy about how Scribd is evil? I doubt it. Doctorow doesn't believe in the concept of copyright at all, although he's willing to use it when it suits his political purposes.

And you have that direct from Cory's mouth? Nothing I've seen publically posted gives me that impression.

Pournelle thinks Doctorow "looks down on working writers", conveniently overlooking the fact that Doctorow is a working writer, and has been full-time freelance since 2005. He also passes over the fact that his collection "The Prince" is available as a free download through the Baen Free Library, which he agreed to in the first place. That might make some of his other comments look a little disingenuous...

I suspect Scribd is going to be a lot more careful in the future. Scribd is getting legal counsel from the Electronic Frontier Foundation, which is probably giving them pretty good advice about its duties under the DMCA and other laws. That's all anyone expects-- that Scribd should obey the law, which includes respecting intellectual property.

I concur. But riddle me this: Scribd should not host material that violates copyright. How does Scribd tell?

If the site is of any size and volume, it's simply not possible to vet every upload, especially when the question is "Is this a work under copyright that should not be posted here?"

Harlan Ellison was having a long running battle with AOL about pirated copies of his stuff appearing on AOL hosted sites. Given the size of AOL and the volume of stuff they host, how does AOL prevent someone from illegally posting Harlan's work?

Answer: they can't. All they (or any other site) can do is take it down when it's pointed out to them. They can't keep it from being posted in the first place.

You people who've been flinging mud at SFWA should be ashamed of yourselves. There's no question SFWA screwed up, but their offense was pretty trivial compared with the rampant lawlessness at Scribd that SFWA was trying to deal with.

No, SFWA should be ashamed of itself (and is.)

No one disputes SFWA's right to ask that infringing copy be taken down. What is being complained about is the remarkably stupid manner in which they did so. Their method of generating the list they used in their DMCA order was apparently to search for anything that contained the words "asimov" or "silverberg". The majority of content affected was not infringing.

It wouldn't have been all that hard for SFWA to target the actual infringing material, but they didn't. They used a shotgun. Collateral damage? Who cares?

Well, SFWA cares now...

I don't fling mud at attempts to protect rights. I fling mud at stupidity.
______
Dennis

[HarryT]

Originally Posted by DMcCunney

Was Scribd aware that a lot of material it hosted was pirated, and did nothing about it because the material made the site more attractive?

If so, I'm outraged. But I don't know that's the case, and neither do you.

I don't know about the site in question, but there are many sites which certainly take a rather "relaxed" attitude to piracy.

Eg, until recently, eBay would only pull an auction if the actual copyright holder whose rights were being infringed personally asked them to; the result was that eBay was home to innumerable software and music pirates.

Now - thankfully - they've changed their policies and will pull auctions if anyone complains that they violate copyright.

If the site in question took the former of these approaches rather than the latter (and I don't know whether or not it did), it would indeed deserve criticism for that approach.

[DMcCunney]

Originally Posted by HarryT

I don't know about the site in question, but there are many sites which certainly take a rather "relaxed" attitude to piracy.

Yep, there are. Scribd might be one of them. I don't know.

If you do that, sooner or later you have problems and tighten up or go out of business.

My bigger question is "How do you prevent pirated uploads in the first place?", and my answer is "I don't think you can." All you can do is take them down when they are pointed out to you.
______
Dennis

[HarryT]

Originally Posted by DMcCunney

My bigger question is "How do you prevent pirated uploads in the first place?", and my answer is "I don't think you can." All you can do is take them down when they are pointed out to you.
______
Dennis

Precisely. But you need to take them down whoever points them out, not insist on it being someone with "properly constituted authority", which was eBay's approach. The way it worked with eBay, by the time you'd jumped through all the hoops they put in your way, the auction was over. I speak from personal experience, as a software author who's frequently seen his software illegally copied and sold on eBay.