Illustration: the scarecrow of Ralph Hodgon’s poem The Late, Last Rook, published presumably before 1918; artist unknown.
In a recent Mobileread article that appears to generate plenty of heat itself, regular contributor Bob Russell suggests that ““Friction” is why e-books adoption is slow.” Friction occurs when publishers and distributors put in all kinds of small hindrances to the book-buying process that viewed separately may make good sense, but that added up form an unsurmountable block to members of the buying public. Russell borrows the term “friction” from “Michal Hyatt, President and CEO of Thomas Nelson Publishers, [who] has written in his blog about reducing “friction” as one way for bookstores to increase their sales,” and sees it equally applicable to e-book merchants.
Now Chris Meadows reports that distributing e-books can get you in conflict with the law: Science Fiction Writers of America (SFWA) has filed a so-called DMCA take-down notice against document sharing site Scribd for distributing e-books without the required permission. Thing is, some of the books that the SFWA wants taken down are distributed with the permission of the copyright holders. As a result, the SFWA take-down notice serves not only to protect the interests of authors whose copyrights have been infringed, but also as a threat to those, authors and site owners alike, who wish to distribute e-books for free.
The DMCA is an American law that concerns itself with copyright in the digital age. Teleblog readers may know the DMCA from its anti-circumvention clause; if you can no longer read an e-book, for instance because the merchant who sold you the key to its lock went bankrupt, it is a crime in the US to pick the lock, even though the e-book is your property. It also has a provision that ever so kindly “protects” internet providers from legal action if they take down a website after being notified of infringement.
The implications of the SFWA’s bully tactics are enormous. Sites can easily get scared into thinking that publishing e-books equals legal action somewhere down the line; they have to make a decision whether that threat is worth it. Scared merchants do not make for a frictionless experience.
Chris Meadows feels that the SFWA’s action was an honest mistake; I have my doubts. A 2006 study of University of California scientists found that about a third of all DMCA take-down notices are illegal. It would therefore appear that those who abuse the DMCA do not perform the due diligence they presumably expect from those they attack. That the DMCA allows this abuse without giving the victims much legal recourse makes it a perfect bullying instrument.
The SFWA’s careless treatment of the copyrights of for instance Cory Doctorow, who allows some of his works to be distributed via Scribd but whose works were nonetheless included in the take-down notice, shows an ambiguous attitude towards its members’ copyrights. On the one hand the rights of authors who are docile toeers of the party line are to be respected; on the other hand the rights of authors who think that their copyrights allow them to distribute their works the way they see fit are to be trampled on.
A telling incident that allows us some insight in how the executive folks at the SFWA think took place earlier this year when then vice-president Howard Hendrix took aim at writers who used their copyrights to distribute gratis e-books as loss leaders. According to Hendrix these writers were like scabs, strike-breakers. The term assumes a boss-subordinate relationship, and the most recent SFWA action seems to confirm that this opinion of its members is held institution-wide.
DMCA abuse is not the sole prerogative of the SFWA; expect plenty of other middlemen and parasites to use the law to hinder the distribution and therefore acceptance of e-books. This is a classic example of what happens when bad law is not stopped, or only stopped piecemeal — and as a result friends of the e-book are caught in the cross-fire.
Please be careful accusing SFWA of “bully tactics” and conflating them with “a third of all DMCA take-down notices are illegal”. SFWA and some of their member authors tried to work with scribd by sending polite requests to take down infringing material; as Pournelle shows, scribd never bothered to answer.
SFWA had a list with thousands of scribd copyright infingements on it; among these were 3 errors (that’s an error rate of somewhere between 0.0015% and 0.0003%), all of which SFWA corrected immediately when brought to their attention. The storm brewing over this is almost entirely Doctorow’s concoction.
I’m not aware of the things being said in SFWA forums. But remember that forums are just a buncha guys chewing the fat; so far, the record of action shows scribd infringing thousands of copyrights for months, SFWA asking scribd nicely to stop and being ignored. Apparently DMCA notices are the only way to get their attention, so this is what SFWA resorted to, with a very small error rate, after exhausting more polite measures.
Please be careful accusing Cory Doctorow of getting his facts wrong, or of forging documents. In his BoingBoing article he lists at least four different works. Browsing through the list I see at least one more — and the SFWA could not have contacted the copyright holder of that one, because the copyright holder has been dead for a while now.
But it doesn’t really matter whether the SFWA perjured once or a thousand times; it’s still a crime. The errors were the direct result of their approach to identifying works, as far as I can tell.
The 4th was discovered (as best I can tell) after I collected my facts. I would not be surprised to see a few more. My point is: the error rate has been quite low. And scribd shouldn’t be throwing rocks in that huge glass house they have been running. This is the part that amazes me: a group of people who are not moviestars living in mansions with hot and cold running lawyers on tap attempted to stand up for their rights. Their (volunteer!) efforts resulted in a tiny percentage of errors, and was, as noted, corrected cheerfully and instantly when brought to their attention.
Yet it is the small group of SF authors who’ve been wronged for months or more who are being vilified in this incident. Is this right or proper? Does it advance the case for publishing your works electronically? It’s wonderful that Doctorow chooses to give away some if his works as he has (and yes I have them on my N770). But I do not see him capturing the high ground by making quite so capital a case as he has.
Did SFWA err? Yes. Were their intentions as evil or domineering as has been insinuated? Did their actions cause major and lasting harm? Not in my opinion. I think we need to ratchet the rhetoric down a bit, that’s all.
My point is: one error is too much if that error could have been avoided by using a methodology that is less cynical. Doctorow’s hypothesis that they just scanned the books for “infringing words” (my term) is quite likely true.
Have they? I thought it was authors standing up for themselves that made the noise.
Not true.
You seem to be missing the point that SFWA tried to commit a crime.
SFWA tried to commit a crime? I think that fits the definition of hyperbole quite well.
From the SFWA side of things they tried to be polite about the copyright efforts and Scribd told them to send DMCA notices or get lost.
The SFWA efforts may have been clumsy but were not done in bad faith, since several authors had asked them for assistance in this matter, and they were willing to correct mistakes found immediately *and* issue an apology for those mistakes.
From where I’m standing it seems that scribd was taking the unreasonable or at least very obnoxious position of hiding behind the DMCA and using it to justify ignoring the copyright infringement as much as possible. It makes sense though. Having copyrighted works on their site no doubt helps their business model since it draws more people to their site.
On the other hand it seems Scribd has won on this issue. Scribd sent the EFF lawyers after the SFWA and forced the volunteer based organization to back down and tell their membership they are on their own. So the good guys have won the day! Right?
Branko,
I don’t understand how you can say ‘not true’ about authors being wronged for months or more. Were their copyrights infringed by the posting of their works on scribd, or not?
Nor do I agree that SFWA ‘tried’ to commit a crime. I see that they tried to protect their own interests, had a very small error rate in doing so, and immediately corrected errors as soon as found. If Pournelle is to be believed, Scribd was much less accommodating. It is good to see that scribd has clarified policies since this flap, and is perhaps more accommodating now – but was it that way before all this happened?
Again, I don’t think a capital case should be made out of this event. A misunderstanding occurred and was quickly cleared up; both parties seem to have learned something from the event. But it does seem a bit chilling for current or future authors to contemplate that they may be called bullies or worse, anytime they attempt to curb the illegal infringement of their copyrights.
Well, I am glad then that I never said that. The main part of your sentence was “Authors … are being villified.” And that’s not true. Maybe you’ll be able to find somewhere in the blogosphere a rabid commenter who conflates the SFWA with its members, but on the whole the entire hubhub focused on the collateral damage of the SFWA’s action.
Once again, the SFWA failed to respect authors’ copyrights while pretending to do the exact opposite. You cannot just wave that aside by calling it collateral damage.
Although a nicely liberal view on crime, courts still try “errors” people make as crimes. It’s the whole reason why we have the distinction between “errors” and “crimes” in the first place. The crime in this case would have been perjury. If the SFWA really had sent a DMCA take-down notice, part of the wording to make it legal would have let them state under pain of perjury that they have the right to demand a take-down of the files listed.
The reason that courts take a very dim view of perjury is because it undermines their authority.
The story was never about Scribd. Scribd was merely an agent for the SFWA in this, and I really wish that people stopped saying “yeah, but what Scribd did was much worse.” Yes, it was, but two wrongs don’t make a right.
Perhaps you should start a website that collects stories about these chilling effects, something like, let’s say, chillingeffects.org? Oh, wait, that one already seems to be taken.
The “collateral damage” that the SFWA caused was trivial and unintentional to boot and was quickly corrected and apologized for.
On the other hand Scibd was certainly aware that they had from all accounts thousands of copyrighted works on their site for months and completely stonewalled the SFWA when they made polite requests to have them removed. Requests initiated by members who asked for their assistance in the matter. Given the circumstances trying to portray the SFWA as the bad guy in all this seems questionable to me.
I hear now that they managed to force the SFWA out of trying to protect their members copyrights they are now starting to clean up their act by removing copy protected works. Guess being accused of being a pirate site doesn’t look good when your looking for investors. Too bad they couldn’t do the right thing two or three weeks ago instead of demanding DMCA notices be sent before they took action.
Arondell, if you don’t understand that two wrongs don’t make a right, then I have nothing to add here. It’s a logical fallacy that most four-year-olds are able to grasp.
The difference is that you portray a mistake as a “wrong”. You have characterized the act of the SFWA as an act of perjury, a crime of intent, rather then a mistake.
You have also tried to say that this is all about the actions of the SFWA and not about Scridbs actions/inaction which is, in my opinion, incorrect. Since Scribds stonewalling of all polite and informal efforts lead to the follow up list.
To put it another way you seem to be either offering a free pass or trying to significantly downplay the wrong doings of Scribd in this matter while trying to portray SFWA as a villan having sinister intent to suppress freedom of expression which is not the case at all.
I certainly feel the SFWA holds the moral high ground in this matter. Scribd ignored all polite and informal requests to remove copyrighted material they knew without doubt was on their site. Were not talking about stuff owned by mega-corportions or J.K. Rowling income level authors here. Were talking about people or the wives/husbands/children of deceased individuals who relied on these works for their income. SFWA in the process of trying to get Sribds to do the right thing made a mistake which they corrected and apologized for as soon as it was brought to their attention. Which is a hell of a lot more then can be said of Scribd.
I don’t portray lying on a DMCA take-down notice as perjury, the law does. I do portray the act of the SFWA as a wrong, because it is. Not because they are not allowed to make mistakes, but because their mistake is the result of a sloppy and cynical methodology that, had the notice truly be a DMCA take-down notice, would have landed them in criminal court.
Please note that it was the SFWA that claimed their list was intended (!) as a DMCA take-down notice. Perhaps that was the mistake you were referring to, but that wasn’t what the SFWA apologized for.
I focus on the SFWA and not on Scribd because Scribd’s case seems cut and dry. There’s nothing to add there, because it is clear that they were wrong.
We are returning to the two-wrongs-don’t-make-a-right thing. Even if lying about the copyright status of a work wouldn’t be legally wrong, it would still be morally wrong, and in the sport of wrongness it would be playing the major league. There is very little difference between pirating an author’s books, thereby denying him (or her) to exercise full control of the distribution of those books, and illegally cajoling a provider into pulling these books from distribution.
If you think that is all exaggerated, consider this: what if Scribd had been selling an author’s books, with the author’s permission, and the SFWA had listed those books?
The wrong in this case is that the SFWA showed just as much respect for another’s copyrights as Scribd did, which is: very little. That it should be Doctorow who gets so incensed about this is no surprise: the SFWA has a history of being disrespectful of his copyrights, as I demonstrated in the article.
In the case of SFWA versus Scribd: yes, absolutely, without doubt. In the case of SFWA in general, considering their dubious stance on copyright: no, they don’t seem to hold any moral ground. Their philosophy seems to be that it isn’t the author who gets to decide what happens with his copyrights, and although that is and always has been a very popular philosophy among a large chunk of all publishers, estates, and groups pretending to represent creators, it’s still wrong.
Branko,
While I respect your viewpoint and your obvious interest in this situation, I submit that you may not fully understand the legal definition of ‘perjury’.
You seem to be suggesting that anytime a person gets a fact wrong and is testifying under penalty of perjury, they have committed perjury. But this is incorrect; perjury must include both mens rea (‘guilty mind’) and actus reus (‘guilty act’). So, if under oath I said ‘2+2=5’ and it was an honest mistake, I would not be guilty of perjury. Hopefully, once shown wrong, I’d cheerfully correct my erroneous statement, as SFWA did. If I made a wrong statement with the intention of misleading the judge/jury, and knowledge that I was doing so wrongfully, then yes, I would be guilty of perjury.
SFWA’s actions don’t appear to have guilty mind or guilty act stamped on them. To me they look like honest mistakes committed in the act of honestly attempting to protect their own rights.
And yes, I have seen more than a few people suggesting boycotts of any work by those involved with SFWA. The overall thrust of articles on this matter have served to lionize SFWA, which is nothing more than a collection of authors. I don’t understand how you can say “Scribd was merely an agent for the SFWA in this”. Scribd never acted as SFWA’s agent?
Here are some simple questions: 1) Who had the higher error rate: Scribd in its publication of thousands of infringing works, or SFWA with less than 10 mistakes in a list? 2) Who had their errors repeatedly called to attention, and either failed to respond at all, or said in essence “thanks but you have not used the approved form for telling us this, so we do nothing” ? 3) Who on the other hand said “Oops! This is a mistake, we’ll fix it immediately, and we are very sorry it happened” ?
Indeed, perhaps I do not fully grasp the meaning of the word perjury. I am not schooled in understanding the law, and I am not a native speaker of English. Having said that, intent is not the only factor in the determination of guilt. If I sell somebody a car that hasn’t been driven in years, without checking if everything is still in order, and the buyer has an accident because the breaks turned out to be broken, I am guilty as can be, even though it was never my intent to hurt or kill the buyer.
You seem to be thinking that as long as somebody makes sure they don’t know what they are talking about, they can tell any lie they wish to a court. Perhaps you’re right, but I would definitely be surprised if that were true.
As for your rhetorical questions, they were just that, right? You did read my discussion about “two wrongs”, did you not?
What I disliked about this whole discussion so far is the suggestion that I only have eyes for one side of the story. I have only eyes for the story, which is a different thing. It is not as if the SFWA is a victim here; the authors are — which makes their story the more interesting one. And since the DMCA is regularly being abused to stifle speech, I don’t think it is too strange of me that I once again try and call attention to that very real problem.
Also, now that the SFWA has turned around and acknowledged that it is the authors who get to decide who distributes their works (which, by the way, fair use and what not, but, whatever), I am among the first to acknowledge that too, and commend them on it.
You have to wonder though whether the SFWA would really have come up with such a clear statement if the only people to report on this issue would have been yes-men.
BTW, just because I dislike aspects of this discussion doesn’t mean I dislike the discussion on the whole. Indeed, the more this issue gets brought to light and disseminated, the better IMNSHO.
Branko:
I’ve never disputed that mistakes were made by both parties. What I’ve been peeved with, throughout this episode, is that SFWA’s much smaller (and apparently unintentional) mistakes earned them almost all of the negative attention, even though SFWA scrambled to correct them immediately. They were called bullies and worse, everywhere this was reported.
Re: perjury. I call this out as a matter of law, because you raised it as such. I do not think that a person who “makes sure that they don’t know what they are talking about” can tell a lie with impunity; I think that this would satisfy the quality of mens rea I mentioned earlier. The question is one of intent, as I’ve been clear in saying. SFWA seems to have had little or no intent to be bad guys. Now, the road to hell may be paved with good intentions. But at least let us make room for the fact that good intentions exist, rather than jumping to the conclusion that the guilty mind exists – as your phrasing still suggests you are doing.
I can understand that someone should take pains to be accurate when swearing out a legal complaint. But is the standard “total perfection, or just don’t try”? My reading of the definition of perjury does not indicate that. From what I have been able to see, SFWA did put a lot of effort into checking their list. How many hours should they *have* to put in, before folks will admit that they did give it an honest effort, though?
And so the three questions, which I admit were designed to encourage contemplation of which party appeared to show more intent to sidestep the legal and moral issues around this whole affair. I’m open to hearing more evidence, but right now, in my eyes, that was very clearly Scribd.
As I’ve said before, I just think we need to dial back the rhetoric a bit. That’s all.
I guess I should clarify the meaning of my third paragraph in prior post with a story example.
Suppose I diligently study a law for 2 full days. I make every effort to understand it as fully as I can. Then I am called to testify about the meaning of that law, and through some fault of my own understanding, or the way my study materials were written, my testimony is incorrect – even though it was completely my intention to tell the truth.
Is this perjury? Not in the eyes of the law. It is not a guilty act – it is an error, committed without guilty mind. I should be admonished for committing a factual error, but not penalized for telling an intentional lie.
Now, if I had some understanding of what the truth was, and made efforts to study and quote only those things which obfuscated the truth I was aware of, then I would have mens rea, guilty mind. My intent to deceive would indeed be a culpable act, punishable in law.
Pournelle says that Dr. Burt did check hundreds of the entries on SFWA’s list, and that because of the way Scribd’s site was laid out, this took considerable time. He then sent it on, confident that he had done due diligence.
In Branko’s car story, this similar to the seller having taken the time to go over the car and thoroughly test-drive it, and finding no faults, selling the car. However a car is a complex assembly of parts – is the seller held responsible for a later problem because he did not take the car apart and inspect every piece with an x-ray machine?
This is what I’ve been trying to get at all along. Exactly how much due diligence is required to satisfy those who’ve criticized SFWA in this matter? Should they have spent 1 hour writing and checking their request? 1000 hours? A million hours?
“SFWA seems to have had little or no intent to be bad guys.”
We disagree there.
“Pournelle says that Dr. Burt did check hundreds of the entries on SFWA’s list, and that because of the way Scribd’s site was laid out, this took considerable time. He then sent it on, confident that he had done due diligence.”
Except that he had not. Due diligence would have meant checking every item, not checking one in two. It would have been different if Burt hadn’t spent a lot of time on works that obviously infringed on the copyright of the authors he represented, but it is impossible that he would have missed author names of authors he did not represent if he had looked at actual Scribd pages.
As Cory Doctorow suggests, and I completely agree that this is the most likely thing to have happened, the list was probably generated by running a computer program (like grep). Maybe Burt did look at a few titles on that list, but he did not look at all of them, as he should have. That is not what most people call due diligence; it’s what most people call sloppiness.
I followed that link you posted and found the following quote:
So Burt did not look merely at hundreds of the items on his list, he apparently looked at each one.
It’s difficult to tell, given the way Pournelle phrased it, and various accounts of whether the list included ‘hundreds’ or ‘thousands’ of entries. So to be on the safe side I chose the most conservative reading.
Anyway, the point stands. Is it due diligence to do a general once over of the car with the best intention of thoroughness? Or must one disassemble the whole thing and x-ray each part with auditors standing by?
I’m curious, Branko … what information led you to the conclusion that SFWA had an intent to be bad guys?
Your comparison is flawed, because it assumes that each item on a DMCA notice corresponds with a car part. Instead, each item corresponds with a separate car. If you are selling a thousand cars in one go, and two of them turn out to have shoddy brakes, you won’t just get off with the statement that you had spot-checked the brakes.
Throughout this I have hypothesized, btw, that this is exactly the mistake that SFWA made; that they saw SF works as some sort of commodity, which could be spoken for in bulk.
To answer your other question, the bad intent lies in that assumption. As they say in the Netherlands, ignorance of the law is no defense. You cannot break the law, and then claim that not knowing the law is a sign of good intent or of a clear conscience — especially not if you broke the law in using that law as an instrument.
The irony here, btw, is that if the SFWA had not compiled a list, but had instead sent a real DMCA take-down notice that did not contain a list but instead merely told Scribd.com to take down all Asimov works and derivatives, it would have been a legal notice, and they would have been entirely in the clear — at least according to my understanding of DMCA jurisprudence. IANAL.
As to a ‘please take down all works by author X’ letter – SFWA and at least one of its individual authors tried this. Scribd did nothing. Further, Scribd (through an EFF lawyer) has now made it painfully clear that they will accept nothing other than a full DMCA takedown statement – which must include a list of infringing works, and links to the postings of them all. (This was Scribd’s stance all along, it seems – the EFF letter simply clarifies it for all to see.)
Treating authors like a commodity – was not done as best I can tell. The list(s) were never meant to include Doctorow’s work; the original intent was to go for works of an SFWA represented author: Asimov. I’ve pointed out, and you’ve agreed, that the list was vetted. So, without quibbling over analogies, the question still remains: exactly how much effort must be put into such a notice, before you and all the other naysayers will agree that it was sufficient – even if an error is later found? Because it sounds as if you are saying that no matter how hard an author or his representative works – if he makes even one mistake, he is the bad guy. Meanwhile a site like Scribd can continue posting infringing works, knowing that they will be held to a much lower standard.
I guess this point is, for some people, difficult to see. I suspect it will become clearer, as more pirate sites create a situation where even an author with a fulltime lawyer working for him still doesn’t have time to find infringing copies, generate proper DMCA notices, and triplecheck each one.
Bryan, I have a feeling we’re going around in circles and aren’t progressing much, so if you don’t mind I won’t answer your last points.