Science Fiction Writers Write DMCA Takedowns

TheGreatGraySkwid writes "With an ironic lack of forward thinking, the Science Fiction Writers of America (or, more specifically, their Vice President Andrew Burt) have issued scattershot DMCA takedown notices against numerous items on the document-sharing site Scribd, many of which were not infringing on SFWA copyrights in any way. It appears that a simple keyword search for prominent science fiction names (like 'Asimov' and 'Silverburg') was used to determine which documents were to be singled out. Included in the documents was Cory Doctorow's 'Down and Out in the Magic Kingdom,' which was released under the Creative Commons license and is freely available at any number of places. Doctorow is up in arms over at BoingBoing, with several other Science Fiction notables speaking up in the comments."

Comments

Scribd is at fault here

[whoever57]

Reading the emails, there is no way that they consitute a valid DMCA takedown notice. Thus, Scribd had no obligation to take anything down. Scribd should have demanded a proper notice or ignored the emails.

Re:Scribd is at fault here

[DragonWriter]

Reading the emails, there is no way that they consitute a valid DMCA takedown notice. Thus, Scribd had no obligation to take anything down. Scribd should have demanded a proper notice or ignored the emails.

Ignoring a takedown notice that falls short of the technical requirements but that identifies the work infringed, the infringing content, and provides contact information has the legal result that the flawed takedown notice may be used to prove the service provider's knowledge of infringement, and thus have the same effect on liability, as if it were a flawless takedown notice (see 17 U.S.C. 512(c)(3)(B)(ii)). Scribd, therefore, was quite likely required, at a minimum, to contact the complaining party for a proper takedown notice, but just taking the material down avoids the mess of paying a lawyer to find out whether or not they actually have to comply and, if not, what they can get away with, contacting the complaining party, etc.

I don't think its fair to act as if Scribd's is morally obligated to know the precise legal boundaries of what they can get away with and push them (unless they have an explicit contractual obligation to their users to do so).

Re:Scribd is at fault here

[LarsG]

A poster on the LJ SFWA group explained the situation much better than I could ever hope to do:

"Just to clarify. This letter, sent by Andrew Burt, seems not to be a DMCA notice as a DMCA notice requires some specific statements as to the agent's representation of a copyright holder, which this letter lacks. Indeed, this letter is obviously written as part of a longer back and forth correspondence between Burt and someone at Scribd.

However, in this subsequent letter, Burt falsely claims that the first letter linked was in fact not an "idle musing, but a DMCA notice."

Since the criticism of these letters emerged, we have been told that, in fact, SFWA never sent Scribd a DMCA takedown notice. This is correct.

In other news, I just got a tin deputy badge from a box of Crackerjacks and will be placing some parking tickets I just printed out on my home computer on the windshields of cars on my block. If anyone receiving the ticket asks, yes I am authorized to hand out these tickets and they are real tickets, the fines from which I will collect. If these real tickets get me into trouble, then they are not real tickets and anyone suckered by them is to blame for his own foolishness.

Is that all clear now?"

Re:Scribd is at fault here

[LarsG]

While I have great respect for Pournelle as a writer, he should have read Doctorow's piece more closely.

Ignoring the obvious ad hominem, let's look at Jerry's arguments:

"I can say this: Scribd.com which Doctorow defends has the complete text of a number of works. One of them is Sheffield and Pournelle, Higher Education. I guarantee you that neither I nor Charlie's widow has given this outfit any permission to do this. They used to have more of my books, and Niven's, and many others. They also had a series of hoops one had to jump through to get those taken down. The procedure was onerous, and they didn't answer my emails."

Doctorow doesn't defend scribd, and he also voice no objection to authors (or their agents) sending DMCA notices in order to remove truly infringing content. His problem is with SFWA sending fraudulent notices (which of all things wasn't even in a proper format) that resulted in non-infringing material being removed. And those 'series of hoops' are what's required by the DMCA notice-and-takedown process. It is the law, not some arbitrary attempt on scribd's part in order to make the process more difficult than necessary. If he has a problem with the law he should take his complaints to Congress.

"SFWA will have an answer to Doctorow. Doctorow does not seem to have done his homework regarding DMCA, but that too is hardly astonishing. DMCA has a number of legal requirements for both those asserting their rights under it and those asserting a right to post copies of works without the permission of the copyright owners. I am no expert on those matters, but SFWA has such experts among its membership and supporters."

I find it incredibly hard to respond to that in a non-ridiculing manner. Cory has been working with the Internet and copyright for so long that he should be able to quote the entire DMCA by heart by now (well, maybe not the rider bill concerning the sui generis protection of boat hull designs). If there is someone that doesn't understand the DMCA it is Burt, he didn't even manage to send a proper DMCA notification to scribd. If that's the level of "experts" that SFWA has available, I'd strongly advise them to get outside counsel post haste. Especially now that Burt has exposed the SFWA to liability due to perjury under DMCA 512(f).

And let me repeat; noone has said that sending notices in order to get infringing material removed is wrong. The entire issue is with SFWA sending notices that resulted in non-infringing content, and content from authors that have explicitly allowed for distribution being taken down.

"They made it difficult for writers to ask that their works be taken off: we had to find them and request one at a time and provide them other materials."

That's the way the DMCA works. If he doesn't like, Congress is over there.

"[..] or that the right of Doctorow to have his work displayed on a site that uses piracy to get net traffic is far more important than mine to have a writers organization try to act in my behalf."

The real issue here is what requirements there should be on services that provide 3rd parties the ability to publish stuff. The notice-and-takedown provisions of the DMCA isn't without it's flaws but it is certainly better than nothing. Copyright holders might feel that the current law is too lax or onerous, so I'd be really interested in seeing what kind of system Pournelle would like to replace it with.

And it might also be educational for him to think through the consequences of his proposed system. For starters: What would be the impact on services ranging from MySpace and YouTube down to blogs which allows comments on posts? Could unscrupulous organizations like the Church of Scientology abuse his system to silence online criticism?

Smart people have thought about these questions, and notice-and-takedown and a similar procedure called notice-and-notice are at the top of the pile when it comes to striking a balance between protecting creators, not stifling the creation of new services and avoiding abuse of the system.

one of the tags should be

[Ralph Spoilsport]

"freakingmoron"

RS

Re:Only a Little Bit Pregnant?

[seebs]

So, since at least SOME slashdot comments contain SOME infringing material, your post should be deleted?

I don't think so.

Re:Cory

[CleverNickName]

I had a snarky comment all ready to blast off, but I've changed my mind.

The fact that someone reading Slashdot doesn't know Cory Doctorow's credentials and wasn't sure whether to trust his Wikipedia entry, let alone know who he is in the first place, is actually a charming example of just how insanely fucking huge the Internet is.

Dystopias

[Wordsmith]

It's like some bad science fiction story set in the near-future, where automatons are used to enforce the will of idea-owning cartels, empowered by a government that passes laws with unintended though predictable consequences!

Thank god we have science fiction stories to warn us away from such dystopias.

Re:Cory

[peacefinder]

Not to mention how nifty it is that he actually checked the history on the wikipedia entry before deciding to trust it.

Hmm. Maybe it's too good to be true, and it's just cleverly-crafted sarcasm?

Re:What a cluster honk

[zotz]

"I wish Cory would cut the writers some slack and admit that the copyright system, however flawed, is really pretty fair."

I don't know about Cory, but I think the system is far from fair. Very far from fair. In many, many ways.

all the best,

drew

http://openphoto.net/gallery/index.html?user_id=17 8
Some CC BY-SA photos for your enjoyment...

Re:SFWA represents ...

[scalzi]

Hey, now.

This suggests that every member of SFWA supports what's happened. Since I'm a member of SFWA (indeed, I ran for president of the organization earlier this year and lost), and have access to their private boards and have seen the carnage there, I can tell you authoritatively: It's not even remotely true.

Speaking for myself, I think every author has a right to say how their work should be used and displayed. I also think that this particular maneuver was pretty dumb.

Punishing every member of SFWA because of a jackassed maneuver by one of its officers is like punishing every American because Dick Cheney is busily taking a squat on the Constitution. In both cases, the executive in question does not represent the views of every member.

Re:What a cluster honk

[pthor1231]

Just because someone can't give a better system currently doesn't mean we can't criticize the current system, especially when it is used so egregiously incorrectly.

Re:Cory

[Original Replica]

There was a slight caustic edge to it but I think that's understandable in this case...

Slightly caustic isn't going to do much about this problem of DMCA notices put up by non-copyright holders, but wouldn't the act of insisting on a improper takedown legally infringe on Doctorow's property? As in he is entitled to damages. Umbrella groups that represent artists are businesses, and the only was to effect the way a business acts is by hitting it in the profit margin. I would love to see Doctorow go after severe punitive damages and then use the money to promote Creative Commons.

Re:Cory: Lazarus Long

[Chmcginn]

He'll be back a few years ago to sleep with his own mother, though. And be rescued by his clone-daughters from WWI.

Don't get me wrong, I like some of the Lazarus Long stories, but the ending just got... umm... actually, kind of twisted up by it's own past, but that's another thread.