The Fight Against ePiracy

Yesterday I talked about my experience in 2005 with Andrew Burt and COCOA. Even two years ago, Andrew was interested in preventing what he called e-book piracy.

Andrew Burt has long been a member of the Science Fiction and Fantasy Writers of America (SFWA) and currently serves on the Board of Directors as Vice President for the year 7/1/2007-6/30/2008. Recently he has also been the chair of a SFWA committee on ePiracy. SFWA has a website titled "Electronic Piracy FAQ" here.

The first question on the site says, "E-piracy occurs when one party, without authorization from the copyright owner, makes an illegal electronic copy of a work, and/or causes one to be available to others. It does not matter if this is done by transferring files from person to person, or by posting the work to the Internet. It is still a copyright violation, still illegal, and still not morally sound."

I'm going to stop here for a second to quickly review the DMCA for those of you not familiar with it. I've referred to the Digital Millennium Copyright Act before. The DMCA was passed by the U.S. Senate in October, 1998, and was intended to expand the penalties for copyright infringement on the Internet. The new law went beyond copyright protection by criminalizing creation of techology intended to circumvent rights protection.

Title II of the DMCA, "the Online Copyright Infringement Liability Limitation Act ('OCILLA') creates a safe harbor for online service providers . . . against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent." (Wikipedia) In other words, as long as your ISP takes down material after receiving a notice that the copyright holder has not granted permission for the post, the ISP is safe from liability.

Enough members of SFWA were concerned about the piracy of their work that the SFWA Committee on ePiracy was established. The committee apparently chose Scribd.com as a target for their efforts.

Scribd.com's website is here. It describes its mission "to create the world's largest open library of documents. Explore the thousands of docs already uploaded or contribute your own!" Although not as well known as Flickr and del.icio.us, Scribd is what is known as a folksonomic site. According to Wikipedia, "folksonomic tagging is intended to make a body of information increasingly easy to search, discover, and navigate." Where Flickr aggregates photos, Scribd collects documents.

Peter Glaskowsky on C/Net Blogs explained recent action by the SFWA ePiracy Committee under Andrew Burt here:

On August 17, Burt sent a [scribd] site operator a list of several hundred documents on the site, alleging that these documents were the copyrighted intellectual property of two specific science-fiction writers-- Isaac Asimov and Robert Silverberg. According to Burt, the SFWA had been authorized by Silverberg and the Asimov estate to pursue copyright violations on their behalf.

There was a problem with the list: not everything on it was actually an Asimov or Silverberg story.

The site did not remove any of the listed documents, and on August 23, Burt sent another message describing the list as "(not) idle musing, but a DMCA notice."

There was a problem here too: neither email met the legal duties or structural requirements for a DMCA takedown notice...

Scribd then did take action to remove a number of documents from its site. One of the writers whose material was taken down was Cory Doctorow, a former director of SFWA. Doctorow was sufficiently outraged to go on Boing Boing here to complain:

As a result of SFWA's takedown notice, hundreds of works were taken offline--including several that had not been written by Asimov or Silverberg. 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.

...it's important to note that many of the other authors whose work was listed in the August 17 email did not nominate SFWA to represent them. Indeed, I have told Vice President Burt on multiple occasions that he may not represent me as a rightsholder in negotiations with Amazon, and other electronic publishing venues.

Doctorow also posted a copy of the apology he received from the president of SFWA Michael Capbianco. That letter said in part:

Some SFWA members complained about the pirating of their works to SFWA's e-Piracy Committee and authorized the committee to do something about it. SFWA contacted scribd.com...about removing these authors' works and generated a list of infringing works to be removed.

Unfortunately, this list was flawed and the results were not checked...

SFWA's intention was to remove from scribd.com only works copyrighted by SFWA members who had authorized SFWA to act on their behalf. This kind of error will not happen again.

On Monday, Labor Day, September 3, SFWA posted a message as follows:

The SFWA Board has just passed the following motion:

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.

In addition, the Board will issue a call for a "temporary, exploratory committee...to investigate the views of the membership on issues of copyright, authors rights" and the role of SFWA in addressing these matters.

And, finally, the Board "will work to develop a new, permanent committee with a clear matrix of operations and goals" to address copyright and education on copyright.

We'll talk more about Internet piracy and whether authors should be alarmed by the subject another time.