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Print 22 comment(s) - last by davegraham.. on Sep 5 at 5:59 PM

The Science Fiction Fantasy Writers Association claims ownership of someone else's work

One of my favorite 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 Fantasy 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 take down 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 take down 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 judgments against careless, malicious or fraudulent DMCA notices -- for example, Diebold was ordered to pay $150,000 to 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 science-fiction 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 search able 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 9/4/2007: 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     Threshold


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Other side of the sotry
By zozzlhandler on 9/4/07, Rating: 0
RE: Other side of the sotry
By davegraham on 9/4/2007 3:17:16 PM , Rating: 2
I think you're missing the point just a tad. What I'm talking about here is not what Scribd did or did not do wrong. I'm talking about the abuse of the DMCA copyright law and misuse of DMCA takedown rules based on the experience of a victim. The methods used to initiate the takedown are well documented (including the apology of the chair of the SWFA and the admission that the use of "bot" was the impetus for the take down notice) and as such denotes an improper and asinine application of the law thereof. I'm not worried about other works on Scribd; I'm worried about folks like RGR who ARE unfairly targeted.

cheers,

dave


RE: Other side of the sotry
By zozzlhandler on 9/4/2007 3:58:40 PM , Rating: 2
The DMCA is an utter mess, and we would be better off without it. However, what happened here is of great importance to everyone who creates "intellectual property". Scribd did not reply to polite requests. The DCMA takedown notices were the only resort. The SFWA admittedly botched their sending out of these notices, but it should not even have been necessary. Scribd made it difficult (deliberately perhaps?) to do this, no doubt contributing to the foul-up. I do not believe that anyone was "unfairly targeted" as you put it. As for using a bot, when they were looking to protect a large number of works by many many of their members, how were they supposed to locate all the infringing works? Do you have any suggestions? I think you should read the link I provided for a balanced view. There is a lot at stake here.


RE: Other side of the sotry
By AmbroseAthan on 9/4/2007 4:54:25 PM , Rating: 3
I think the problem is someone should have then been checking the Bot's work. While it may have targeted many actual infringing works, it took something out because of the single word "Asimov." Had anyone checked they would have realized there was no infringement.

Reading through the link you posted, they asked "why should they have to check the list?" And while the DCMA is a bit loose in interpretations, general law provides you must prove guilt, not prove innocence. The SFWA fired off of a cluster-bomb to take out the targets they needed, when if they had proofed the list (which I understand would have taken them some time, but that is their job) problems like this could be avoided. There may have been many infringements, but I feel those who were innocent and wronged by this should be able to retaliate for compensation.

As a whole though, the DCMA is a bit problamtic in its execution and needs some tidying up in the process it uses. Some level of guilt should have to be proven while the case is decided, not a simple "I think they are infringing something!"


RE: Other side of the sotry
By zozzlhandler on 9/4/2007 8:23:18 PM , Rating: 2
No doubt the SFWA fouled up. But note that polite requests to scribd to remove all works by a particular author failed to elicit any response. And time is important, as the longer a file is up, the more downloads there are, and thus the less potential value to selling digital distribution rights to a legitimate site. I don't condone SFWAs mistakes, but I say that you are beating up on the wrong people - allowing these files to be freely downloaded (many are still there, and the number of works infringed upon is in the thousands) inflicted considerable financial harm on certain people. Having your file removed temporarily is an inconvenience, maybe more than that, and may make you angry, but I don't believe it compares with what was done to these authors or their estates...


RE: Other side of the sotry
By davegraham on 9/4/2007 5:06:40 PM , Rating: 2
btw, I will read your link when I have a spare moment. too busy screwing around with fibre channel to bother at the moment. :)

dave


RE: Other side of the sotry
By zozzlhandler on 9/5/2007 12:31:33 AM , Rating: 2
Here is an updated link with a better summary:
http://www.chaosmanorreviews.com/open_archives/jep...


RE: Other side of the sotry
By davegraham on 9/5/2007 5:59:43 PM , Rating: 2
RE: Other side of the sotry
By peritusONE on 9/5/2007 8:01:01 AM , Rating: 2
quote:
As for using a bot, when they were looking to protect a large number of works by many many of their members, how were they supposed to locate all the infringing works? Do you have any suggestions?

I'm definitely not the person to get in on this arguement, but I wanted to respond to this. If an organization becomes so big that they are unable to properly account for all their members' work, then that is solely their burden to carry. Just because they have become so large does not mean that they are no longer accountable for their actions. That is absolutely no excuse.

The SFWA needs to adapt to their large member base, not take the easy way out with non-monitored automation.


RE: Other side of the sotry
By zozzlhandler on 9/5/2007 11:24:38 AM , Rating: 2
I urge you to read the link above. What you say is perfectly reasonable, but I think you lack complete information. No-one is suggesting SFWA should not be accountable for their actions. But first please see a description of their actions from another point of view. My point here is that SFWA is being made into the bad guy, where in fact all they did was make a very understandable error. Someone else did actions that were (imho) completely reprehensible, and they are the ones who should be the target of all these flames. Anyway, please take a look. A balanced perspective is alway better.


terrible
By TomCorelis on 9/4/2007 1:27:42 PM , Rating: 3
I find it astonishing that situations like these were either not considered or ignored when all these original laws (the DMCA) were drawn up.




RE: terrible
By davegraham on 9/4/2007 1:32:29 PM , Rating: 4
I'm not suprised at all. Committees aren't known for their collective intelligence. :)

cheers,

Dave


RE: terrible
By rdeegvainl on 9/4/2007 1:36:38 PM , Rating: 2
Isn't there a statute that says if one part of a law is wrong, then the whole law should be repealed, if it goes before a grand jury or something? That would be helpful here.


RE: terrible
By davegraham on 9/4/2007 2:57:13 PM , Rating: 2
Judicial review would be a good thing seeing as how the various applications of DMCA have caused a lot of angst amongst manufacturers, etc. the purpose of the law has been emasculated by very loose interpretations of it. I'm not a case law expert, so someone else would need to chime in about redress, etc.

cheers,

dave


Penalty
By Murst on 9/4/2007 1:00:52 PM , Rating: 4
The penalty for abusing the DMCA should the the loss of copyright. So, if you have a copyright on some work, and abuse the DMCA, your copyright should be revoked. That would make copyright holders think twice before filing a bogus DMCA notice.




RE: Penalty
By davegraham on 9/4/2007 2:55:23 PM , Rating: 2
I agree heartily.

cheers,

Dave


RE: Penalty
By EarthsDM on 9/4/2007 4:07:00 PM , Rating: 2
In ancient Rome, the penalty for falsely accusing a citizen of murder (i.e. the citizen you accused was not convicted) was death. From http://en.wikipedia.org/wiki/Twelve_Tables

Si vindiciam falsam tulit, si velit is . . . tor arbitros tris dato, eorum arbitrio . . . fructus duplione damnum decidito.

Someone who has brought a false claim shall be brought before three judges, and shall pay a double penalty.

I don't know how well this worked out for them. Perhaps further research is in order?


Snatch-Line
By Alpha4 on 9/4/2007 12:29:03 PM , Rating: 2
If the SWFA is relying on bots to sniff-out possible copyright infringements than I guess their snatch-line isn't working out. Not surprising of course.

I hope Scribd's counter-notification form gets wins out. Does your friend happen to know if appeals to reverse take-down requests like this typically get honoured?




RE: Snatch-Line
By Alpha4 on 9/4/2007 12:29:34 PM , Rating: 2
Snatch-line = snitch line *


RE: Snatch-Line
By davegraham on 9/4/2007 12:32:21 PM , Rating: 2
lol...i like the gaff in "snatch-line."

in any case, Johne was able to work with the EFF to determine his liability and responsibility. Typically, with a DMCA takedown, the hosting site has 10 days (business days or calendar days...can't remember) to remove the content and to file the counter-claim will take another 10 days or so.

obviously, Scribd is just one of the outlets that they use to publish as all the files are directly available from http://www.raygunrevival.com

cheers,

Dave


Daily Tech next
By rdeegvainl on 9/4/2007 1:39:46 PM , Rating: 2
Hmmm good thing they stopped that program now, otherwise they might have to send a notice to dailytech, due to the asimov quote at the bottom of some pages.




RE: Daily Tech next
By KristopherKubicki (blog) on 9/4/2007 1:44:50 PM , Rating: 2
I'm glad they took their program down, because I sure as hell wasn't going to remove my homage to the man who reinvented sci-fi in the 20th century. His estate certainly isn't hurting one way or the other.


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