The Scribd / Doctorow Affair

There have been a lot of questions and misperceptions about this, so here's a description of what took place, and answers to some FAQs.

• The SFWA Electronic Piracy Committee was authorized to act to remove copyright infringing ("pirate") materials on behalf of over a hundred authors, including Robert Silverberg and the estates of Isaac Asimov, Robert Heinlein, and Frank Herbert.

• The web site scribd.com was identified as having thousands of pirated files by these authors. (It still has a lot as of the date I'm writing this.)

• As chair of the committee and VP of SFWA, I entered into discussions with the owners of the site. The goals of the discussions were (a) to minimize piracy in the future, as their business model and business practices lend themselves to piracy and they had made no effective efforts to deter uploaders from uploading unauthorized material; (b) to see if they could provide tools to make it easier to identify infringing material in order to get it removed, since they had so much and it was laborious to identify it all by hand; and (c) to remove the existing unauthorized material. We proposed ideas to help in this regard that would not impact their site or users.

• Scribd personnel were resistant to taking action on these items.

• As part of the discussion, to illustrate the scope of the problem, I identified many authors with pirated files on their site and urged them to search on those keywords to see both the problem of how many there were, and how hard they were to identify by hand.

• Scribd continued to resist taking action. They would not search on the keywords themselves and requested a list.

• I presented them with a list of several hundred works infringing on the copyrights of Asimov and Silverberg. I had requested assistance from some SFWA volunteers to compile this long list of items that did not belong, but received no help as no one else had time. In that scribd had no tools to make compiling such a list easy, I wrote a quick[*] program to extract the keyword search results. ([*] "Quick" because I'm a volunteer doing this job, I do have other work to do, and at this point they were only asking for the list by way of example.)

• I ran the program to extract the matching keywords. It produced a text file of raw HTML from their site which I then tried to wade through -- but it was a very ugly mess, if you've ever looked at raw HTML code. I next made a manual pass through it deleting many obvious items, though being as hard to read as it was, and lacking time to make it pretty, I unfortunately didn't do a foolproof job. I specifically deleted items where the author names were ones I knew generally approved of copying their works, specifically Cory Doctorow, John Scalzi, and Charlie Stross. In fact, I searched for their names specifically and deleted them. (You can verify on the assorted sites that have since posted those lists that their names are not present.) I removed other many other items I saw that didn't belong. Checking each item is very time consuming using their site, and I made my best efforts considering there were hundreds to do, time constraints, no assistance, and at that time I was not contemplating that it was an official takedown list -- it was at that time a list of many infringing works for Scribd to see how bad the problem was.

• Scribd continued to resist taking action. They retrenched to a very conservative position, saying they would only respond to "DMCA notices" and only if worded in a very specific (and I was told, overly demanding) manner. (DMCA = Digital Millennium Copyright Act; i.e., US copyright law.) Most web sites respond more helpfully and are typically glad to remove pirated files. The ones that resist are often those who are what you'd call "pirate sites", i.e. that exist for no other real purpose than piracy. Scribd appeared, at that time, to all sensory input to be a pirate site, not a legitimate site.

• In this view (that scribd was a pirate haven) I was universally supported within the SFWA forums. I can't recall any posts in their defense, urging they be left alone as good folk. Authors were, in fact, loudly demanding Scribd's head on a pike.

• Since Scribd's owners were being even less helpful than before -- no longer even giving lip service to wanting to help -- I told them that their request for their specific DMCA wording was improper, and what I had so far presented them was (as I had been told previously by lawyers) sufficient notice for them. Frustrated at their lack of assistance, I told them to consider my prior emails to them as sufficient notice. I was hoping to bring them around to a more helpful position regarding points (a) and (b) above, and was not focusing on (c) -- there would be new pirate files uploaded constantly, so until the underlying problems of (a) and (b) were solved, (c) was almost an moot point, and endless game of whack-a-mole. Indeed, I somewhat expected Scribd to refuse even the DMCA request, proving themselves to be unabashed pirates (yes, that happened with some regularity), meaning my next step would be to go to their Internet service provider and request that their entire site be taken off-line.

• Scribd chose to remove the items from the list, though afterward still insisting they were improperly formed notices.

• After removing the items from the list, scribd sent me "DMCA counter notifications" from two people. These are the method provided in copyright law to restore documents that have been accidentally removed. I quickly told scribd to restore those and any other documents for which they received a counter notice. (Apparently scribd was not instantaneous about restoring them, but that's another matter.) I and others from SFWA apologized for the error. I apologize here again.

• Although no counter-notice was sent about it, one of the wrongly removed files was one labeled "Down and Out in the Magic Kingdom" that had been uploaded by user "trustme3" from Seoul, Korea. I didn't see it amid the mess of HTML code, and I confess I don't think I would have have recognized it as the title of a Cory Doctorow novel even if I had.

• The file in question was released under a Creative Commons license allowing others to post it, and this was how it arrived there (via the guy in Korea). During the short time the file was unavailable on scribd, the file was available for free at a large number of other locations on the web, including Cory's own site, Project Gutenberg, Google Books, and so on. Anyone looking for a copy of the book during that brief time would have had little trouble finding it.

• Rather than contact me or anyone in SFWA (or at scribd) to ask if it were a mistake and seek correction, some days later Cory Doctorow instead published, before purportedly millions of readers, on his popular boingboing blog -- shortly before midnight and going into the Labor Day holiday weekend -- a message accusing SFWA of "abuses" of the law.

• "Abuse" implies intent -- there was no intent to use the DMCA for any purpos other than to remove the works of those authors who wanted them removed. The purpose was solely to use the DMCA as it was written; and the small accident that occured was quicly rectified, following the methods built into the law to correct mistakes. There was no "abuse" despite Doctorow's headline of "Science Fiction Writers of America abuses the DMCA".

• Cory Doctorow is a Canadian blogger at the popular boingboing.net and vocal activist against US copyright law.

• Given when Doctorow posted, the one-sidedness of it, the nature of the blogosphere to copy information without investigating the whole story, readers erupted in the blogosphere to his spin on the situation long before anyone in SFWA was even aware of it. (We only heard about it via SFWA members who saw it on blogs.) I believe it was also fueled by some tendencies among people to dislike authors trying to protect their copyrights (which was the original problem),

• As soon as we were aware of it we requested the file be restored and apologized for the error. (Of course, you can't put a genie like that back in the bottle, and to this day incorrect facts about it are still be presented.)

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  Some common issues I've noticed:

• There was no intent to act on behalf of Cory Doctorow or others, as some bloggers have asserted. The inclusion of those files was purely accidental. The lists supplied were specifically on behalf of Robert Silverberg and the estate of Isaac Asimov, who had authorized SFWA to act on their behalf. SFWA members had access to a private web-site form where they could sign up for this service as a benefit of membership. Over a hundred members had signed up (though knowledge of the form probably faded from memory over time). There were many other authors who had also authorized action against scribd, and a number of them had actively and urgently requested SFWA act against scribd.

• Questions whether the SFWA Board of Directors authorized this action. The Electronic Piracy Committee had long been authorized to act in this manner. There are a large number of piracy cases so the Board does not micromanage and generally does not oversee individual cases. I had discussed scribd in particular with other Board members, including the President, and there was enthusiasm for solving the problem.

• Comments that only properly formed DMCA notices can be used to take down pirate works. No. Anyone can ask in any manner they like -- it's a free country, you can phrase questions, comments, or requests how you like. (Imagine if you had to file a form in specific language in triplicate to get someone to do something for you! Instead of, "Excuse me, could you move your car off my lawn?") Some web sites refuse to act against pirate material unless the request is phrased in some specific legalistic manner. It's a legal question whether this makes them liable or not if they fail to act, but I Am Not A Lawyer, and it's their neck in such a situation anyway, not mine. At any rate, I've frequently used informal requests to get infringing material removed. They usually work better than formal ones; honey vs. vinegar, and all that. If a school teacher posted an Asimov story on their public web site, I didn't send them a nasty DMCA legalistic letter, I politely asked if they could remove it. I had begun talking with scribd back in March and they were not being helpful.

• I note that in the five-ish years since I was chair of the committee, the takedown notices we sent out resulted in easily over 100,000 pirate files being removed. Undoubtedly this included non-pirated files, as many a pirate site also has, e.g., the works of Shakespeare, Dickens, and other public domain works, and a common result from an Internet service provider upon being shown evidence of a ton of pirate files (that the owner has refused to remove) -- is to remove the whole site. Possibly even including works by Cory Doctorow. Until the "Labor Day 2007 Massacre" there had been zero, zip, nada, no notices sent back about improperly removed files.

• This was, actually, one of the very few times where I supplied a list to a site, and by far it was the longest list. In the past I've pointed out something like "look at this page, it's got thousands of pirate files on it", or "Search on Asimov", etc. and they go Yikes! and remove it all. When I've used a list in the past it's been very short, usually when there are only a few pirate files included among authorized files (maybe 10 or 20 items on a list, all of them really obvious). This was the first time a site actually wanted a list of hundreds in order to believe they had a lot of pirate files on their site.

• Isn't this from the same guy who invented Shades of Gray? Yes, that's me. SoG is much misunderstood, but, alas, that happens. The idea was to turn piracy into a form of marketing, by placing in pirate channels (only in pirate channels) copies of works that differed in a wide range of ways from the original, from obvious to subtle (along the whole spectrum), and advertising the fact, so that pirate downloaders would have doubts about how accurate a copy their received, causing a "flight to quality", i.e., purchasing the real product from a reputable source after having previewed a probably-incorrect promotional copy; and cause pirates to have to employ DRM methods to "protect" the "real" pirate material. (Which would be a losing proposition, since DRM is easier to subvert than to make iron-clad, especially when pirates can't firmly establish their real identities. These kinds of schemes are also more work and thus reduce the actual amount of piracy. There's a certain irony in having pirates be the ones who have to employ the DRM methods they so dislike. :-) The intent was to make RIAA-like lawsuits against infringers unnecessary (since all the copies of "shaded" works are now legally legitimate), eliminate the need for new (and usually over-broad and abused) anti-piracy federal laws, and eliminate the need for DRM and user inconvenience it causes (at least that part is starting to happen). Plus turn pirate channels into known marketing channels, making money for authors. [Wasn't there some loan thing involved in this, you ask? Yes, the SFWA Board, with full input from SFWA counsel on how to proceed, loaned me funds from SFWA's Legal Fund for legal fees to file the patent application on Shades of Gray. I signed a promissory note to repay the funds and the funds were paid directly to the law firm. I repaid the loan in July 2007.] I imagine SoG doesn't sound too attractive to people who like being able to easily download illegal copies of files, but that's more or less the idea... (I wholeheartedly agree that if the real works are available easily and inexpensively there will be no economic harm from piracy, although authors nonetheless may wish to minimize piracy for non-economic reasons, as is their right.)

• Comments that SFWA should have a lawyer review every takedown request. Well, there are just too many cases for that; it would cost a fortune, take forever, and it isn't needed (given the low error rate, the lawyer could make an infrequent error too). Considering that most SFWA work is done by volunteers, the The idea that there should be some super-formal bureaucratic process is impractical. Nor necessary.

• Where's it at now... The Board voted to suspend the e-piracy committee until an exploratory committee headed by John Scalzi can get the sense of SFWA members whether they wanted to continue this member benefit. This exploratory committee has made some severe blunders, so I'm not sure what use their results will be, but ultimately it will be the Board that decides what to do next.

• Some other folks tried some ingenious ways to remove copyright infringing files from scribd, tagging them and using scribd's other approved means, until scribd forbade this. (Doesn't sound like the efforts of a site on the up and up...)

• Update 11/07: The exploratory committee found that SFWA members overwhelmingly (80% or more) want SFWA to offer direct assistance in helping members whose works have been infringed. The Board is now discussing how to restore this service.

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• And in a situation that seems ironically relevant to this, see this link.

  In a nutshell:

  Ursula K. Le Guin contacted me about Cory Doctorow, who infringed her copyright by reprinting the entirety of one of her short stories onto boingboing without permission, misrepresented her intent, omitted her copyright notice, and placed a Creative Commons license on her story allowing not reprinting (not to mention creating derivative works), which caused many further unauthorized reprints. Details are at the link above. Doctorow has so far responded with a snub, ignoring Ms. Le Guin's requests.

  Update 10/13/07: Ms. Le Guin has posted an open letter at http://www.ursulakleguin.com/Note-OpenLetter.html. After SFWA President Michael Capobianco interceded, Doctorow has deleted the page. As yet Doctorow has not yet honored Ms. Le Guin's other requests.

  Update 10/14/07: Many people discussing Doctorow's actions at http://community.livejournal.com/sfwa/32381.html. This incident has also turned up that Johne Cook, another of the scribd users who had work accidentally briefly blocked and got all upset about it (but didn't contact me or SFWA even though he was a member of my Critters Writers Workshop at the time, so he knew full well how to contact me), apparently doesn't himself feel bound by copyright law -- Doctorow outted Cook for forwarding my private email without permission.

  Update 10/15/07: Doctorow has apologized, at http://www.boingboing.net/2007/10/14/an-apology-to-ursula.html. His apology is ok, though he admits no fault in copying the entirety of her work, goes overboard saying he's removed every mention of Ursula Le Guin from his archive, and takes a poke at me for good measure. I think quoting an entire 600 word story isn't likely to pass muster as fair use, as he claims, and I think it's incorrect to call my accidental removal of his file on scribd "fraudulent" (I had no intent to deceive). Comments aren't permitted there, but many have commented instead at http://www.boingboing.net/2007/10/14/lessigs-anticorrupti.html, here & here.

  Update #2 10/15/07: I posted the following question on a boingboing thread where many people were discussing Cory's actions (again, many in an unflattering light). I posted this about 9AM Mountain this morning:

  A question for The Management, actually (sorry, if there's a better way to ask I didn't see it, and Cory's killfiled me, so...): Are user comments on boingboing covered by the CC license referred to at the bottom of the page? The box I'm using here to post this doesn't say anything like, "by posting a comment you agree that your comment will be covered by the Creative Commons license we use on the site" so I have a feeling the user may retain the rights, and permission would be needed to republish someone's entire comment elsewhere. Yet the footer implies everything on the site is CC-usable. I'm unclear if I'm allowed to quote user comments, in full, without seeking permission of the user who posted them -- which would be difficult, since there's no contact information for each poster.

  Could you clarify? (Reason I'm asking is, well, I'd like to repost some of the user comments! But I don't want to step on toes by doing so.)

  And could I suggest, for clarity's sake, that you might include a little permission-granting sentence like the above near the comments box? (I'd also suggest the link in the footer might be revised to say something like, "as much of the work on this site as possible is covered with a CC license, click here for information on what is and isn't covered", linking to a page that explains CC licenses and what is/isn't covered, etc. (I know it ought to be "everything" in an ideal world, but copyrighted photos or other images wouldn't be, so it isn't cut and dried.)

  I think CC licenses are terrific, and applaud their use in general; but sometimes the devil is in the details, so I wanted to ask rather than assume.

  Thanks!

  I also emailed a copy to Teresa Neilsen Hayden (an admin for boingboing who someone emailed me about, suggesting I contact with that question). I was gone to a meeting, had no email from her, so I reloaded that page about 4:30 PM looking for a posted reply -- and not only had my comment been deleted (but not others talking about the situation, including, I now see, a copy of Ursula's story) -- but my comment was replaced with a nasty attack on me and Ursula Le Guin by Teresa, full of vitriol and false statements.

  I attempted to post a comment noting this to boingboing, but my login was removed. (I attempt to log in, with login/password field pre-filled, which worked this morning, and it now says "Invalid login.")

  So, people aren't allowed to criticize boingboing, and the admins censor and attack those who do.

  So much for them fighting for free speech. I'll note that when I ran Nyx (world's first free ISP that I founded, dedicated to free speech; still there, still dedicated to free speech, though I spun it off as a 501(c)(3) non-profit in 1997 and no longer am active there), I never deleted anyone's critical posts of me. If memory serves, in the 10 years I ran it I only ever booted a couple people who violated Nyx's generous terms of service (and theirs was an amazingly egregious case for the time). I may not have agreed with people, but I never censored anyone's opinions.

  It's their site, to do with as they please, of course, but that's pretty sad behavior.

  Update #2 10/15/07: Readers alerted me that there is another copy of Ursula's story posted in that same thread above, comment #13. The message was posted anonymously, and boingboing says they manually approve all anonymous postings after reviewing them. Bit of a nose tweak, that.

  Update 10/16/07: Both the extra, moderator-approved copy of Ursula's story, and the moderator's attack on Ursula and me, have thankfully been removed.

Related:
On Copyright
Ebook (un)availability, a case study
On Doctorow