©3: Balancing Rights
SFWA Takedowns: A Copyright Incident
This real-life parable is an incident—not a main event, but worth considering as an example of how badly things can go awry. It involves a group I admire. the Science Fiction and Fantasy Writers of America (SFWA). It also involves Scribd, a text-sharing site I’d never seen before hearing about this incident.
You may not have heard about this particular sideshow. On the other hand, you may have: A key actor is Cory Doctorow, a science fiction writer who’s also heavily involved with the Electronic Frontier Foundation—and who blogs at Boing Boing. Thanks largely to Doctorow’s involvement and some truly hamhanded efforts by SFWA, this story made it to Boing Boing, Ars Technica, /. and “the rounds.”
John Scalzi’s summary of the events leading up to the “fairly significant dust-up online,” from “About that latest SFWA thing” (September 3, 2007, Whatever [www.scalzi.com/whatever/]):
In August, the Vice President of SFWA, acting for author Robert Silverberg and the estate of Isaac Asimov, presented Scribd with a list of files on that site that infringed on the copyrights of those authors and asked Scribd to remove those files, per the Digital Millennium Copyright Act. Scribd complied, although, as it turns out and for various reasons, the request did not conform to the requirements of the DMCA.
Unfortunately, the list provided to Scribd by the SFWA VP was not vetted to any great degree and contained quite a few titles on it that weren't by Asimov or Silverberg (and thus, which SFWA had no right to ask to have taken down), including Down and Out in the Magic Kingdom, by Cory Doctorow. Cory, as you may or may not know, rather famously open sources all his fiction and lets anyone distribute and share it on a non-commercial basis. He's also expressly forbidden SFWA from representing him in matters of copyright.
As with most uploadable-content sites, Scribd (which has just under 188,000 documents as of this writing) does not make any attempt to enforce copyright up front—but explicitly says it supports copyright and, in fact, details requirements for a DMCA takedown notice. It appears that Scribd members can also flag documents as inappropriate, with copyright status being one reason.
When I checked on September 13, I saw a fair number of documents with “Isaac Asimov” or “Robert Silverberg” in the document. Some (by no means all) either were stories by one of them or included part or all of such stories. In the latter case, you can’t be sure the document isn’t fair use.
A different accounting of this affair by another science fiction writer (Jerry Pournelle) states things differently in the interest of drawing different conclusions, but I believe we can stipulate a few facts:
• Some material on Scribd infringed copyrights held by authors who have authorized SFWA to act on their behalf.
• David Burt, an SFWA VP, sent a list of files to Scribd and asked for DMCA-required takedowns. The list and accompanying material may not have met DMCA requirements.
• As a safe harbor (where DMCA comes into play), Scribd is obliged to take down such material on receipt of a properly-executed take-down request.
• Some of the files on that list should not have been—either they did not represent infringement or they represented the work of authors who did not authorize SFWA action.
What’s the big deal? Consider this text at Scribd:
It is our policy to respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. In addition, we will promptly terminate without notice the accounts of those determined by us to be "repeat infringers". If you are a copyright owner or an agent thereof, and you believe that any content hosted on our web site (www.scribd.com) infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Scribd's Designated Copyright Agent with the following information in writing (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Scribd web site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Scribd to locate the material. Providing URLs in the body of an email is the best way to help us locate content quickly.
4. Information reasonably sufficient to permit Scribd to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party 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.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
There are two issues here. First, sending a DMCA takedown notice accuses someone else of infringing copyright. In Scribd’s case, it can also lead to the uploader being banned from Scribd. Second, sending a false takedown notice—one that says to take down noninfringing material or material that the complainant isn’t authorized to act on—is perjury and, under DMCA, more. Here’s Section 512(f):
Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
That second subclause is interesting: Wrongly stating that something was taken down erroneously is itself enough to make you liable for damages. The lessons: Use DMCA takedown notices carefully—and complain about them just as carefully.
SFWA’s official screwed up. Maybe trivially, maybe non-trivially (depending on whether it’s your ox being gored, er, material being removed erroneously)—and maybe that doesn’t matter. The action caused some of Doctorow’s stuff to get taken down: That was a serious mistake. I’m not sure how you accidentally confuse a Doctorow novel with something by Asimov or Silverberg—neither of whom, as far as I know, has set novels in the Magic Kingdom—but never mind. (Turns out it was because the legally-posted document included a blurb from a review in Isaac Asimov’s Science Fiction Magazine, thus including that name.)
Cory Doctorow was not a happy camper. Here’s part of his lengthy August 30, 2007 post (which deserves reading in full) at Boing Boing (www.boingboing.net):
The Science Fiction and Fantasy Writers of America has used the Digital Millennium Copyright Act to fraudulently remove numerous non-infringing works from Scribd…
Included in the takedown were: a junior high teacher's bibliography of works that will excite children about reading sf, the back-catalog of a magazine called Ray Gun Revival, books by other authors who have never authorized SFWA to act on their behalf, such as Bruce Sterling, and my own Creative Commons-licensed novel, "Down and Out in the Magic Kingdom."…
It appears that the list was compiled by searching out every single file that contained the word "Asimov" or "Silverberg" and assuming that these files necessarily infringed on Silverberg and Asimov's copyrights…
…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…
Ironically, by sending a DMCA notice to Scribd, SFWA has perjured itself by swearing that every work on that list infringed a copyright that it represented.
Since this is not the case, SFWA has exposed itself to tremendous legal liability. The DMCA grants copyright holders the power to demand the removal of works without showing any evidence that these works infringe copyright, a right that can amount to de facto censorship when exercised without due care or with malice. The courts have begun to recognize this, and there's a burgeoning body of precedent for large judgements against careless, malicious or fraudulent DMCA notices—for example, Diebold was ordered to pay 125,000 for abusing the DMCA takedown process…
In addition to the legal risks, SFWA's actions have exposed it and its members to professional risk. For example, the page that used to host my book, Down and Out in the Magic Kingdom now reads, "The document 'Down and Out in the Magic Kingdom' has been removed from Scribd. This content has been removed at the request of copyright agent Science Fiction and Fantasy Writers of America." Down and Out in the Magic Kingdom was the first novel released under a Creative Commons license, and I've spent the past four years exhorting fans to copy my work and share it. Now I've started to hear from readers who've seen this notice and concluded that I am a hypocrite who uses SFWA to send out legal threats to people who heeded my exhortation…
There's no excuse for this. Even a naive Internet user should be able to understand that if you compile a list of every file online that has the word "Asimov" in it, you'll get a lot of works that weren't written by Isaac Asimov included in the search results. In the case of Down and Out in the Magic Kingdom, the file included a blurb from Gardner Dozois, former longtime editor of Asimov's Science Fiction Magazine -- and it was that "Asimov" in "Asimov's Science Fiction Magazine" that triggered the takedown…
I'm a dues-paying SFWA member and past volunteer who relies on the free distribution of my books to sell printed books and earn my living. By fraudulently removing my works from Scribd, SFWA is taking money out of my pocket--it's the online equivalent of sending fake legal threats to bookstores demanding that they take my books off their shelves.
There’s more, including an apology (of sorts) from SFWA’s president referring to “more than three” erroneous inclusions.
Scalzi’s post includes considerably more than the summary that begins this essay. The post is four print pages long, not including 92 comments at this writing. Scalzi is not only an SFWA member (you must be a published author to join), he ran for president earlier this year. His take on it is well worth reading in full. Excerpts from his five major points—and his concluding paragraph:
1. Look, SFWA screwed this up, and there's no sugar-coating it. SFWA was absolutely in the right to ask Scribd to take down infringing works of the two authors it represented, and I think that needs to be acknowledged up front; Scribd had no right to have that work on its site. Where SFWA screwed up was in not making its "DMCA notices" conform to the law, and in providing Scribd with a takedown list rife with errors, which caused works to come down that shouldn't have come down.
This was sloppy and unprofessional work, which positioned SFWA to be pilloried for abusing other people's intellectual property rights, even as it was—quite correctly—moving to protect the IP rights of Asimov and Silverberg. And pilloried it indeed was, because it had monumentally ironic misfortune of violating the IP rights of Cory Doctorow…Defending the rights of some authors does not excuse violating the rights of others.
2. That said, SFWA and in particular its president Michael Capobianco did the right thing by apologizing quickly, and by promising not to have such an event repeat…
3. Apropos to this, there have been a number of comments online…along the lines of "This never would have happened if Scalzi were president of SFWA." Well, no, it wouldn't have, not in the least because I wouldn't have allowed the individual most personally responsible for the event to have been in a position to have caused it.
That said, let's be very clear that I think one of SFWAs responsibilities is to help its members control their work, online and off. SFWA is not wrong for wanting to have work that infringes its members rights taken down from Scribd… SFWA erred in implementation, but not in intent.
4. Scribd, the site which has the offending files in question, has used this event as a way to position itself as a victim of SFWA's heavy-handedness, but, you know. There are a whole bunch of copyright violations up on the site, and while Scribd is beating its breast about how they always work with authors to take down infringing work, even without a full DMCA request, I can speak from personal experience that they have not always been so delightfully responsive…
5. If I might make a personal appeal here, it would be not to judge all of SFWA according to the ham-handed actions of our current vice-president in this particular event… SFWA's not monolithic…
In the end, this is actually pretty simple. SFWA did a stupid thing, it apologized as soon as it realized it did a stupid thing, and now, in its own delightful way, is trying to figure what the hell it's going to do next. The good news is that it's not likely to do the same stupid thing again. That's a step in the right direction.
The comments—many from science fiction authors, many others not—are interesting. As seems always to be the case here, more than one commenter argued that two wrongs do make a right: That it was OK for SFWA to infringe on Doctorow’s rights and accuse innocent people of being copyright infringers because some of the items on the list should have been taken down.
Jerry Pournelle (or “Dr. Pournelle,” since he’s one of those who always refers to PhDs as “Dr. whoever” and does have that degree) had his own lengthy take on the matter in a September 4, 2007 post at Chaos manor reviews with the scintillating title “Computing at Chaos Manor: September 4, 2007.” As one might expect from Pournelle, the heading includes both “Jerry Pournelle” as a signature and, after a website link, “Copyright 2007 Jerry E. Pournelle, Ph.D.” His post runs nine single-spaced pages (no comments—they appear not to be allowed). Given Pournelle’s attitudes on copyright, I’m only including very brief excerpts; you can find the whole at www.chaosmanorreviews.com. Pournelle’s take on Cory Doctorow’s account and a slightly snarky but factual account at ars technica::
If one reads those versions and nothing else, the case is very clear. SFWA in a bumbling attempt to bully a legitimate web site threatened use of the Digital Millennium Copyright Act, and was properly smacked down by the Electronic Frontier Foundation to the cheers of all those who are hip to the ways of Web 2.0.
Pournelle talks about SFWA’s practices to protect copyright, how much he disliked seeing his stuff at Scribd, how bad the problem was, what “Dr. Burt” did about it (that “Dr.” gets used a lot)—and by inference how trivial the problem was: “There were thousands of copyright documents… At least three of the documents named on [Burt’s] list should not have been on the list… there may have been more, as many perhaps as ten; this in list of hundreds of documents which scribd had absolutely no right to post.” Thousands, three, “as many as ten,” hundreds…quite a numbers game (particularly since the number of inappropriate inclusions appears to be at least 80, well beyond “as many as ten” and a fair percentage of “hundreds”).
Pournelle summarizes the “explosion” of commentary: “SFWA was trampling on the rights of those who believe in Creative Commons. SFWA was infringing on copyright! SFWA was misrepresenting itself. SFWA was the bad guy. Forgotten in all this were the rights of the authors who had created the stories being posted on scribd.” In the first two cases the criticism is right: SFWA was “trampling on the rights” of those who use CC licenses—which infringes their copyrights as “the authors who had created the stories.” Apparently some authors’ rights are more equal than others. Apparently the language within SFWA’s closed conferences got “obscene.”
Pournelle notes EFF’s letter to SFWA and says “one would have thought that if EFF were going to get in this act, it would have been on behalf of the authors!” Pournelle says SFWA disbanded the Electronic Piracy Committee and “will no longer act on behalf of writers in these matters.” Here’s the actual motion passed by the SFWA Board (quoted from the SFWA president’s LiveJournal):
Motion: That, effective immediately, all of the activities of the current ePiracy Committee be suspended and the Committee itself be disbanded until such time as the Board has had the opportunity to review the legal ramifications of sending out any additional DMCA notices, as well as to explore other methods by which SFWA may be able to assist authors in defending their individual rights, while ensuring that any such activity will not unduly expose SFWA to negative legal ramifications.
Further, that the Board shall issue a call for a temporary, exploratory committee of between five and nine individuals to investigate the views of the membership on issues of copyright, authors rights, what role the membership would like to see SFWA take on these matters and what level is risk (legal, public relations or otherwise) is acceptable to the membership in regards to that role, and what—if any—public policy statement SFWA might issue on these subjects on behalf of its membership.
Finally, that the Board, in conjunction with the findings of the above committee and its own deliberations, will work to develop a new, permanent committee with a clear matrix of operations and goals, whose purposes shall include, but not necessarily be limited to protecting the copyrights of our member authors who desire such protection in a way that complies with the applicable laws, and to help educate both our membership and the public at large in regards to copyright law.
I find it hard to read that as a decision to abandon action. It sounds to me like a decision to make sure the actions taken are appropriate.
Pournelle admits that Scribd hasn’t hurt him—and flat-out denies that SFWA’s actions could have caused financial harm to Doctorow or others. He admits that what little evidence there is about electronic “piracy” of books suggests it may help actual sales. He agrees DMCA is deeply flawed (and claims the U.S. was forced to make copyright life+50 because, you know, the Berne Convention—after all, the U.S. couldn’t possibly influence international agreements, could it?). “Moral” comes up more than once in his discussion, as does “pirate.” And he offers this statement in large bold type: “Depriving a laborer of his wages is, along with stealing from widows and orphans, one of the sins that traditionally cries to Heaven for vengeance.”
Finally, Pournelle says the issue (should authors be able to control their own works?) isn’t going away and that he chooses “to stand with those who defend the moral rights of authors to control their own works,” saying he feels “a bit like Horatius at the bridge.”
But Cory Doctorow does not deny the moral rights of authors to control their own works—including his own rights in that regard. John Scalzi does not deny the moral rights of authors to control their own works, but he is aware that using the words “Isaac Asimov” within a document does not automatically make that document part of Isaac Asimov’s works. (I’m a great admirer of Asimov’s style and work; don’t read any of this as a putdown.) Yes, there are a few anti-copyright extremists who would deny such rights, but Pournelle is hardly in an embattled minority here.
I left out almost all of what Pournelle actually says—and he make some good points. As Scalzi says (in one of the comments on his own post linking to Pournelle’s take), “both Cory and Pournelle see the event through their own filter and report accordingly.” Nor is Scalzi ready to declare Scribd (or anyone else) innocent: “Scribd is a business entity…and enjoined to follow the law. If the site encourages infringement of copyright, then Pournelle is perfectly in his rights to see them as bad guys, because they are messing with his ability to control his work.”
Sidebar to this sidebar: Naturally I searched my own name—and of fourteen results, two were my documents instead of ones with “Walt” (Whitman, etc.) somewhere in the text and “Crawford” somewhere else. Both were issues of Cites & Insights—one issue 4:5, the Broadcast Flag issue, uploaded based on its relation to EFF issues (I believe it’s also been mounted on EFF’s site or some affiliated site). The other? C&I 7:10—last month’s issue—uploaded by Mal Burns because I said something about Second Life. Since both documents show Creative Commons BY-NC symbols in a sidebar and since there’s no charge to use Scribd, the people who uploaded these issues acted legally and ethically.
One of the comments on Scalzi’s brief post has this wonderful line: “You just have to love a story where no one can claim the white hat.”
Scribd was slow to take down items: We have Scalzi’s own testimony in that regard. No white hat there. SFWA’s actions were at best sloppy, at worst incompetent—and, oddly, incompetent in a way that probably protects them from liability (the takedown requests weren’t proper DMCA notices, so might not be subject to DMCA penalties for inappropriate use). EFF—well, I’ve never viewed EFF as having a particularly balanced or nuanced set of positions, so I shouldn’t be surprised.
And yet, and yet. Apparently Scribd is taking things down and shutting down repeat infringers more readily than in the past. Clearly SFWA plans to find better ways to help authors protect their rights (and yes, I absolutely believe that authors have the moral and ethical rights to control their works—within limits). As that same commenter (“Tom”) also says:
Yes lots of poo flying right now (some deservingly in my opinion) but when it is over and done with. Scribd will be more careful with what they have on their site and the SFWA will make sure they stop making asses of themselves. (I hope.)
A sideshow, yes. But not an irrelevant sideshow. Balancing rights is tricky—particularly when the whole concept of balanced rights may be foreign to some parties. The rights of an author are not absolute. They never have been; they should not be.
Oh, and in closing: It’s “SFWA” rather than “SFFWA” because it was originally the Science Fiction Writers of America—and because the membership decided to retain the initialism.
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