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February 9, 2008Dr. Andrew BurtVice-PresidentScience Fiction & Fantasy Writers of America, Inc.Dear Dr. Burt:I am an attorney with the Electronic Frontier Foundation (EFF). I write today as legalcounsel representing Scribd.com. If SFWA is represented by counsel in connection withthe matter discussed below, please let me know so that I may direct futurecorrespondence accordingly.On August 17, 2007, you sent an email to Scribd.com on behalf of SFWA alleging thatnumerous items hosted on Scribd.com allegedly infringed the copyrights of authors whoyou claimed to represent. On August 27, 2007, you confirmed in another email that your earlier communication was intended as a formal notice under the Digital MillenniumCopyright Act (DMCA).We have now heard from no fewer than four authors whose works were improperlytargeted by your notice. They confirm that they have never authorized SFWA to act astheir DMCA enforcement agent. As a result, it appears that your notice constituted amisrepresentation both of your authority to act on their behalf and that the targetedmaterials were infringing.Scribd.com takes its copyright responsibilities seriously and complies in every particular with the requirements of the DMCA. Upon receipt of a compliant DMCA takedownnotice, Scribd.com acts to promptly remove any materials uploaded by its users. ButScribd.com does not take lightly your apparently careless invocation of the DMCA toremove content without any valid justification.I understand and appreciate that SFWA has taken steps to apologize to Scribd.com userswhose materials were improperly removed as a result of your notice. This letter isintended to prevent any repetition of these unfortunate events. While we will continue toconsider valid DMCA takedown notices sent on behalf of rightsholders who you areauthorized to represent, this letter puts you on notice than any further takedown noticesthat contain misrepresentations may expose you and SFWA to liability (includingattorneys fees) pursuant to 17 U.S.C. § 512(f). This would include not only notices thatmisrepresent about your authority to act on behalf of rightsholders, but also any noticesthat target activities (such as the inclusion of small excerpts of copyrighted materialwithin larger original works) that are plainly noninfringing fair uses.
See Online Policy
454 Shotwell Street, San Francisco, CA 94110 USA+1 415 436 9333 (v) +1 415 436 9993 (f) www.eff.org
February 9, 2008Page 2
Group v. Diebold, Inc.,
337 F.Supp.2d 1195, 1204 (N.D. Cal. 2004) (imposing liabilityfor sending DMCA takedown notices targeting obvious fair uses).
Moreover, none of your recent communications have been in compliance with therequirements of the DMCA. As you should know, the DMCA requires that a takedownnotice be in writing and include each of the following pieces of information:(i) A physical or electronic signature of a person authorized to act on behalf of theowner of an exclusive right that is allegedly infringed.(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a singlenotification, a representative list of such works at that site.(iii) Identification of the material that is claimed to be infringing or to be thesubject of infringing activity and that is to be removed or access to which is to bedisabled, and information reasonably sufficient to permit the service provider tolocate the material.(iv) Information reasonably sufficient to permit the service provider to contact thecomplaining party, such as an address, telephone number, and, if available, anelectronic mail address at which the complaining party may be contacted.(v) A statement that the complaining party has a good faith belief that use of thematerial in the manner complained of is not authorized by the copyright owner, itsagent, or the law.(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of theowner of an exclusive right that is allegedly infringed.
See
17 U.S.C. § 512(c)(3)(A).Your recent communications conspicuously fail to meet several of these requirements,including the lack of a statement under penalty of perjury that you are acting with theauthority of the copyright owner and any identification of the work you allege is beinginfringed. In addition, the law requires that all of these elements must appear in a singlecommunication, rather than spread across numerous email messages.
See Perfect 10, Inc.v. CCBill LLC,
488 F.3d 1102, 1113 (9th Cir. 2007).You may wish to review the most recent ruling from the Ninth Circuit Court of Appealson the DMCA, which presciently predicted the harm Scribd.com users appear to havesuffered as a result of your noncompliant notices:
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In order to assist you and your counsel, we have posted each of the cases cited herein, inits entirety, to Scribd.com, where you can search for them by name.
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