September 2007

DMCA and SFWA: Evil twins?

by dave on September 4, 2007


One of my favourite online reads is Ray Gun Revival, a gripping e-zine published biweekly (usually) by a good friend of mine, Johne Cook. Imagine my horror, then, to hear from his own keyboard that he was subject to a DMCA violation courtesy of the folks at SFWA (Science Fiction & Fantasty Writers Association). At issue was the inclusion within the Ray Gun Revival magazine of the word “Asimov.” That’s it. No copyrighted text, no trademark violations, etc. Just a name. This was enough to send the folks at Scribd (an online hosting site similar to Flickr) scrambling to take down the infringing magazine (and all the others that seemingly were in violation). I’ll let Johne tell the next part:

We uploaded our first season of magazine issues in .pdf format, and it’s been a smashing success. We’ve been getting hits for our little space opera magazines at Scribd from all over the planet! Ray Gun Revival was featured as scifi.com’s Site of the Week in June, 2007. I don’t know how they found us, but it wouldn’t surprise me if it didn’t come about because of the sort of exposure we enjoy at Scribd.

But then something weird happened. We received a notification that one of our issues had been taken down because ‘because the copyright owner contacted us and asked us to.’ That statement was of great interest to us, because we hold the copyrights for these issues at the magazine. Puzzled, we queried Jason Bentley, Director of Community Development at Scribd. What unfolded next was a flat-out surprise.

The entity that filed the DMCA takedown request was SFWA, the Science Fiction and Fantasy Writers of America. They, of course, have nothing to do with RGR. Jared Friedman, President of Scribd, responded personally. He agreed it looked like there was some confusion, and attached a DCMA counter-notification form. He wrote that Scribd would forward the counter-notification to the organization which complained about the document ‘and most likely reinstate the material.’ He even followed up a couple of hours later as I was checking and double-checking our contract language and discussing the situation with our leadership circle.

I understand that the next step is to wait for ten days while the DMCA wheels churn. If we are successful, our issue in question will be reinstated at Scribd. However, in the interim, I notice now that another issue has been taken down as a result of a SFWA request. This behavior is irritating at least and draconian at best, and we wonder if the SFWA doesn’t have better things to do.

Whether this is a misunderstanding or not isn’t the issue. What is apparent is that the SFWA are policing Scribd, filing takedown notices on behalf of organizations they have nothing to do with. In our case, they’re not only not protecting our magazine, they are harming our ability to gain the most exposure for our contributors through cool services such as Scribd.

In any case, as Johne has explained, there seems to be no method or madness to these abuses of DMCA (of which I’m no fan, really). As a matter of fact, other people have been piling on as well. Cory Doctorow, himself a gentleman and a scholar, explains the tenuous position this places folks in:

The 1998 Digital Millennium Copyright Act allows copyright holders to use “notices” to force ISPs to remove material from the Internet on a mere say-so. In the real world, you couldn’t get a book taken out of a bookstore or an article removed from the newspaper without going to court and presenting evidence of infringement to a judge, but the DMCA only requires that you promise that the work you’re complaining about infringes, and ISPs have to remove the material or face liability for hosting it.


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 $150,000
125,000 for abusing the DMCA takedown process
.

Interesting, to say the least. Cory goes on to say:

I am a former Director of SFWA, and can recall many instances in which concern over legal liability for the organization swayed our decision-making process. By sending out this indiscriminate dragnet, SFWA has been exposed to potential lawsuits from all the authors whose works they do not represent, from the Scribd users whose original works were taken offline, and from Scribd itself.


SFWA’s copyright campaigns have been increasingly troublesome. In recent years, they’ve created a snitch line where they encourage sf lovers to fink on each other for copying books, created a loyalty oath for members in the guise of a “code of conduct” in which we are supposed to pledge to “not plagiarize, pirate, or otherwise infringe intellectual property rights (copyright, patent, and trademark) or encourage others to do so.” What business SFWA has in telling its members how to think about, say, pharmaceutical patents, database copyrights, or trademark reform is beyond me. In 2005, SFWA sent out a push-poll to its members trying to scare members off of giving permission to Amazon to make the full text of their books searchable online.

In digging deeper into this story, I also determined that the SWFA was using a “bot” to troll through the site and determine violations based on keywords (a la “Asimov”). Obviously, this is about as effective as entering “AMD” into Google and getting back 15 million + irrelevant hits but, for organizations that seek to “protect” their content, it does seem to be the weapon of choice.

UPDATE:

In light of all the traffic and internet “noise” this situation has made (me being a veritable grain of sand in the vast ocean of discontent), there appears to have been some progress to rectify the situation. Johne states the following at his blog:

Mr. Capobianco posted an announcement on the SFWA Livejournal blog that the SFWA ePiracy
Committee has been suspended and disbanded
. It is also forming a new committee to take a fresh look at SFWA’s position on electronic rights issues going forward, and John Scalzi has made himself available for that new committee.

Looks like a step in the right direction.

Comments, as always, are welcome.

Cheers,

Dave

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