L'Ombre de l'Olivier

The Shadow of the Olive Tree

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03 September 2007 Blog Home : September 2007 : Permalink

Scribd and Copyright Infringement

I, along with many others, read all about Croy Doctorow's tiff with the SFWA over removal of copyright infringing works. I also read Jerry Pournelle's slap down response to Mr Doctorow. All of this is interesting in part because up until this little scrap I'd never heard of scribd and never visited it. I have just done so, and find it a pretty annoying Web 2.0 site. Although this short on Heinlein and Sex is quite an interesting read I doubt I'll browse much further in the site.

Anyway back to the issue at the root of the tiff. Scribd seems to make it easy for people to upload works written (and copyright) by someone else and put them in a form where they are relatively easy to find. Cory's "information must be free" shtick is wrong here where he complains that:

Specifically, in the Aug 23 email, SFWA Vice President Andrew Burt demands that Scribd require its uploaders to swear on pain of perjury that the works they are uploading do not infringe copyright. SFWA has taken it upon itself to require legal oaths 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 anything for publication on Scribd take this oath of SFWA's devising.

The 'oath' essentially says that the uploader affirms either that he owns the copyright to the work being uploaded or that the work is permitted to be distributed this way. It is possible that it could be rewritten better but the concept seems perfectly fine and sane. Cory seems to think that asking such an affirmation is an infrinegement of the uploader's rights which seems bizarre. I cannot imagine why any creator of a review or other "thought, document, letter, jeremiad, story or rant" would not wish to assert his/her copyright of the content in question, so asking that the uploader assert that he is not violating the copyright of others seems like basic sense.

Pournelle's rebuttal makes a couple of excellent points:

It looks to me as if we have reached a decision point: either authors have some rights to what they create, or they don't. If they don't then we have to start looking at sales models.

The sites in question had thousands of copyrighted works and deliberately made it difficult for the copyright owner even to request that they take them down.  SFWA has a couple of volunteers to work on their behalf. Dr. Burt used some software tools to compile a list. The list apparently included some works that the sites had permission to post. When that was called to his attention the objections to those items were removed.

The worst that happened was that for a couple of days some of Corey Doctorow's work was not available for download from those sites; that is presuming that the site actually took them down at all.

On the other side, for weeks thousands of copyrighted works were available for download from a pirate site.

Doctorow says he is the aggrieved party, and the hounds now bay after SFWA and Dr. Burt.

Precisely why this should be so I don't know, but it looks as if "electronic freedom" means that authors have essentially no rights: or that the right of Doctorow to have his work displayed on a site that uses piracy to get net traffic is far more important than mine to have a writers organization try to act in my behalf. Incidentally, make no mistake: the SFWA committee did send polite letters to begin the discussion. Those did not get much attention.

Having said that Cory is wrong I have to say that I tend to agree with his basic thrust which is that the DMCA makes it far too easy to remove stuff that shouldn't be removed. In fact it seems to me that the DMCA is flat out a badly written law. It makes a lot of perfectly harmless things illegal, makes a bunch of things that should be easy difficult and vice versa. In other words, no matter whether you agree with the aims of the law or not is irrelevant because the law doesn't really deliver on its stated aims but is a mess. Indeed on the scribd blog the EFF legal reposnse makes it clear that the DMCA in fact allows scribd to do the slopey shoulders trick and disclaim any responsibility for anything and shove the blame right back to the SFWA.

Even beyond the DMCA issue, I was originally in agreement with Cory, however the more I read, the more I decide that the guy is wrong and he is defending a service that doesn't deserve it. Whether or not the SFWA should be the enforcer for all its member writers is a side issue. The main issue should surely be that scribd has numerous uploads which are almost certainly copyright violations - jusr a quick search this morning shows titles such as Uller Uprising, Emerald Sea and Cold as Ice - and seems to make it hard to get these taken down. A simple button on every title where you can fill in a form stating why you believe this is a copyright violation would help. Even if the form did not immediately cause the work to be removed from view - it probably shouldn't - it would be possible do a wikipedia style thing of putting up a notice like "This item is subject to a dispute over copyright, downloading it may be in violation of copyright" and having a clear policy that the uploader must respond within a certain umber of days (say 5 working days) or see
  1. the work removed
  2. all other work he has uploaded removed
  3. his ID being banned from scribd (ID may be defined as cookie, email or IP address or some combo thereof)
I can't see a problem with any of this. One scribd user (Mondobeyondo) appears to have uploaded around 2000 documents, most of which appear to be under copyright. If I were the SFWA (or any of the various authors of publishers) I would be asking scribd for the identity of this uploader and suing the bugger for everything he has because, unlike some of the RIAA lawsuits, this guy has clearly played fast and loose with the law as it is written and deserves to be sued for punitive damages, even though I suspect his actual contribution has been more positive than negative.

I should note in theory a place like scribd performs a valuable service and that philosopically I tend to agree with Doctorow when he claims, as have Eric Flint and others, that having electronic editions of works available for free enhances print sales. I am in fact positive that this is correct. However that does not mean that I believe all authors/publishers should have no recourse to unauthorized persons distributing works for free. Authors and publishers should be able to choose whether or not they wish to allow electronic editions of their work to be made available for free or at reasonable prices.

I strongly believe that making the first work (or first two) in a series available for free is a great way to hook readers. I strongly believe that the biggest problem most writers face is obscurity not piracy but the choice to make works available electronically should be theirs not someone else's. Furthermore I am strongly in favour of cheap ($4-$7) ebooks being produced for all works from smaller authors because it immediately removes the "book 2 of a series of 5 is now out of print" problem that is such as great way to make keen readers avoid a series. There are some other interesting consequences of ebooks - as Charlie Stross noted some time ago, the existence of an easy to get, cheap (or free) ebook reduces the attraction of said book for the piraters because the gift giving nature of that subculture means that works are valued based on how hard they were to create and/or how much money they would cost if bought legally. A $5 ebook barely rates while a $25 hardback is well worth pirating.

The same goes in spades for works that are out of print by deceased authors. I would be willing to see a copyright law that says that if a work is out of print for N years then any publisher shall have the right to republish it in any format they wish and that royalties shall be collected at some fixed rate and the estate of the author shall have to claim them. There are any number of writers (H Beam Piper being an excellent example) whose works are now out of print and unavailable except in second hand bookstores but who would provide entertainment to numerous readers if only the readers could actually buy the book. If a single central "out of print" registrar were established it would be fairly straightforward to manage and in this age of internet searches, the registrar could be run on a very limited budget. But again, the law as it stands today, is not written this way and breaking the law as it stands is not, in general, a good way to cause the law to be fixed.

Scribd, as it currently exists, actually harms the argument about free or cheap ebooks because it feeds the paranoia of the bean-counter wings of the publishers. Defending it is an excellent way to get sane people (e.g. Jerry Pournelle) to think you are an idiot. And it is a well known fact that once people think you are an idiot in one area they tend to think you are an idiot in other areas. Hence Mr Pournelle and other sane authors are not going to feel like backing your more correct long term premise that making books available electronically for free or cheap is a good idea.

Let me illustrate: having had a quick look at scribd I'm going to admit that it has introduced me to a writer (Kate Elliot) that I almost certainly would not have read, and that I'm taking advantage of the piracy of scribd to read a book of hers, King's Dragon (and I'm regretting that I hadn't done this before my recent trip to the US). I would buy the book electronically if an electronic version existed, but as far as I can tell, it doesn't. Thus I'm going to read the pirated book and if I like it then when I next go to the US she will be on the list of authors that, if they happen to be in Barnes & Noble or Borders, I will probably buy.

If Daw were like Baen with its Free Library it is likely that the book I'm reading a pirate copy of would be in the free library. I could then read the book without feeling guilty and without having to fight my way through the errors and layout issues of a scanned pirate copy and assuming I enjoyed it buy the remaing six for $5 each or so. In other words I'd be spending $30 total now, a $30 that is almost 100% gross profit. Since the books are not available electronically Ms Elliot and her publisher, Daw, are likely to end up getting their cut of the $7.99 of $15.98 retail price to split between them because the chances are high that the bookshop will only have books 1 and 2. In other words instead of a gross profit of $30, they get a gross profit more like $5. This is not a good result economically speaking.