Monday, September 03, 2007

Shira's SFWA Membership May Get Renewed Yet

by Ken Houghton

On Friday night, we left for the beach for the long weekend. At the time, SFWA had just turned itself into a complete cf (see Hugo-Winning Editor Patrick here).

Fortunately, Michael Capobianco—who was on the case early—took ended up doing the right thing:
Motion: That, effective immediately, all of the activities of the
current ePiracy Committee be suspended and the Committee itself be disbanded
until such time as the Board has had the opportunity to review the legal
ramifications of sending out any additional DMCA notices, as well as to explore
other methods by which SFWA may be able to assist authors in defending their
individual rights, while ensuring that any such activity will not unduly expose SFWA to negative legal ramifications.

This is in no small part because Scribd did the right thing, after receiving multiple complaints:
On August 17, 2007, you sent an email to on behalf of SFWA alleging that numerous items hosted on allegedly infringed the copyrights of authors who you 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 Millennium Copyright Act (DMCA).

We have now heard from no fewer than four authors whose works were improperly targeted by your notice. They confirm that they have never authorized SFWA to act as their DMCA enforcement agent. As a result, it appears that your notice constituted a misrepresentation both of your authority to act on their behalf and that the targeted materials were infringing....

I understand and appreciate that SFWA has taken steps to apologize to users whose materials were improperly removed as a result of your notice. This letter is intended to prevent any repetition of these unfortunate events. While we will continue to consider valid DMCA takedown notices sent on behalf of rightsholders who you are authorized to represent, this letter puts you on notice than any further takedown notices that contain misrepresentations may expose you and SFWA to liability (including attorneys fees) pursuant to 17 U.S.C. 512(f). This would include not only notices that misrepresent about your authority to act on behalf of rightsholders, but also any notices that target activities (such as the inclusion of small excerpts of copyrighted material within larger original works) that are plainly noninfringing fair uses. See Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204 (N.D. Cal. 2004) (imposing liability for sending DMCA takedown notices targeting obvious fair uses).

Now don't get me wrong. Scribd isn't the greatest site in the world for copyright protection. But they've just gotten a lot of positive, free publicity due to the actions of the e-piracy committee, and SFWA not only has a black eye from Boing Boing users, but the job of the new e-piracy committee is going to be that much more difficult.*

But it's a step in the right direction, and creates the biggest giggle of the weekend from Andrew Burt:
It seems that SFWAns' feelings about the risk tolerance for fighting piracy have shifted, and we need to assess what those now are before we proceed.

In other words, SFWAns in general want the group, we're going to fight piracy**, to fight actual piracy, not send scattershot, poorly vetted requests that subject us to legal action.

*Without going into details, the suggestion that the e-piracy committee needed to be rebuilt from scratch was made and greeted with reprobation at best.

**As Will Shetterly noted, "[p]erhaps copyright concerns should be addressed by an independent organization that wishes to [be in the business of] police[ing] copyright."

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