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Science Fiction Writers of America abuses theDMCA
POSTED BY CORY DOCTOROW, AUGUST 30, 2007 11:36 PM| # | DISCUSS (67)
The Science Fiction and Fantasy Writers of America has used the Digital MillenniumCopyright Act to fraudulently remove numerous non-infringing works from Scribd, asite that allows the general public to share text files with one another in much the same way that Flickr allows its users to share pictures.Included in the takedown were: a junior high teacher's bibliography of works that willexcite children about reading sf, the back-catalog of a magazine calledRay GunRevival,books by other authors who have never authorized SFWA to act on their behalf, such as Bruce Sterling, and my own Creative Commons-licensed novel, "Downand Out in the Magic Kingdom."Thelist of works to be removed was sent by "epiracy@sfwa.org" on August 17,described as works by Isaac Asimov and Robert Silverberg that had been uploaded without permission and were infringing on copyright. In afollowup email on August23, SFWA Vice President Andrew Burt noted that the August 17 list wasn't "idlemusing, but a DMCA notice."The 1998 Digital Millennium Copyright Act allows copyright holders to use "notices" toforce 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 thenewspaper 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 aboutinfringes, and ISPs have to remove the material or face liability for hosting it. 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 thelist 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.
This implies that Robert Silverberg and the Asimov estate have asked SFWA to policetheir copyrights for them, but 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 representthem. Indeed, I have told Vice President Burt on multiple occasions that he may notrepresent me as a rightsholder in negotiations with Amazon, and other electronicpublishing venues.More importantly, many of the works that were listed in the takedown were written by the people who'd posted them to Scribd -- these people have been maligned andharmed by SFWA, who have accused them of being copyright violators and havecaused their material to be taken offline. These people made the mistake of
talkingabout
and
promoting
science fiction -- by compiling a bibliography of good works toturn kids onto science fiction, by writing critical or personal essays that quoted sciencefiction novels, or by discussing science fiction. SFWA -- whose business is to promotescience fiction reading -- has turned readers into collateral damage in a campaign tomake Scribd change its upload procedures.Specifically, in the Aug 23 email, SFWA Vice President Andrew Burt demands thatScribd require its uploaders to swear on pain of perjury that the works they areuploading do not infringe copyright. SFWA has taken it upon itself to require legaloaths of people who want to publish any kind of thought, document, letter, jeremiad,story or rant on Scribd. Not just "pirates." Not just people writing about science fiction,or posting material by SFWA members -- SFWA is asking that anyone writing anythingfor publication on Scribd take this oath of SFWA's devising.Ironically, by sending a DMCA notice to Scribd, SFWA has perjured itself by swearingthat 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. TheDMCA grants copyright holders the power to demand the removal of works withoutshowing any evidence that these works infringe copyright, a right that can amount tode 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 takedownprocess.I am a former Director of SFWA, and can recall many instances in which concern overlegal liability for the organization swayed our decision-making process. By sending outthis indiscriminate dragnet, SFWA has been exposed to potential lawsuits from all theauthors whose works they do not represent, from the Scribd users whose original works were taken offline, and from Scribd itself.In addition to the legal risks, SFWA's actions have exposed it and its members toprofessional risk. For example, thepage that used to host my book, Down and Out inthe Magic Kingdomnow reads, "The document 'Down and Out in the Magic Kingdom'has been removed from Scribd. This content has been removed at the request of copyright agent Science Fiction and Fantasy Writers of America."Down and Out in theMagic Kingdomwas the first novel released under a Creative Commons license, andI've spent the past four years exhorting fans to copy my work and share it. Now I'vestarted to hear from readers who've seen this notice and concluded that I am ahypocrite who uses SFWA to send out legal threats to people who heeded my exhortation.In discussing this with my agent, Russell Galen, I was made aware of another potentialproblem: Scribd
does
end up hosting infringing works (just like Flickr, Blogger,LiveJournal and any other site that lets users upload their own files) that writers andtheir agents can remove by sending in legitimate DMCA notices (Russ tells me thathe's sent Scribd notices on behalf of the Philip K Dick estate, another of his clients). When SFWA begins to muddy the waters by asserting that the organization is itsmembers' representative for copyright, they make it harder for actual copyrightenforcement agents to do their job -- how much harder will it be for Russ to convinceScribd that he is Dick's representative now that they've been burned by SFWA?There's no excuse for this. Even a naive Internet user should be able to understand thatif you compile a list of every file online that has the word "Asimov" in it, you'll get a lotof works that weren't written by Isaac Asimov included in the search results. In the
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