Elaine Scott’s Copyright Folly

What do you call someone who not only sues someone trying to help them, but does so with terminally flawed legal arguments? An idiot.

There’s really no “nice” way to say it. Using the courtroom as a club against people trying to help you is just plain stupid, even if you have a disagreement with them.

However, that is exactly what children’s book author Elaine Scott is doing to document-sharing site Scribd, suing them for trying to help her better protect her work.

It is a strange and bizarre case not only tests the limits of one’s imagination, but also one that bears a closer examination as it may have an impact on the rights of smaller content creators everywhere.

Background

The case began when Scott found one of her earlier books, financial advice work entitled “Stocks and Bonds, Profits and Losses”, available illegally on Scribd. She filed a DMCA takedown notice and the work was removed but Scott was not satisfied. She filed suit against Scribd with two different accusations.

First, according to Scott, the site itself is a violation of copyright because it “Shamelessly profits from the stolen copyrighted works of innumerable authors” and the creators “Have built a technology that’s broken barriers to copyright infringement on a global scale and in the process have built one of the largest readerships in the world.”

However, it is the second claim that has become the most attention-grabbing. Scribd employs a “takedown stay down” system that prevents infringing works from being reuploaded to the site and her book, once the notice was filed, was added to that database. Scott now also claims that this copyright filtering service is an infringement and that “Scribd doesn’t have the authority to ‘help’ me with anything…. The filtering system is Scribd’s way of asking for forgiveness, rather than permission.”

What ends up tying this entire lawsuit together into a big ball of copyright strangeness is that Scott is being represented by Kiwi Camara, who became famous in copyright circles for his defense of Jammie Thomas in her retrail, which saw her being found liable for $1.92 million in damages for sharing some 24 songs.

When Ashby Jones at the Wall Street Journal called this case a “head scratcher”, he was being polite. This case is, without a doubt, one of the strangest and most befuddling I’ve ever seen.

Analysis

Legally, the case seems to be a non-starter. On the first complaint, the facts of the case line up very closely with the Universal v. Veoh case where the video sharing site Veoh was sued by Universal for enabling users to publish copyrighted content. However, the court threw out the case in September after finding that Veoh had complied with the DMCA and qualified for its safe harbor protection.

Though the ruling in the Veoh case was very specific to the company itself, the facts largely seem to line up. I can attest that Scribd has always responded swiftly to DMCA notices and its copyright filtering system is a further sign of good faith. Scribd is not a popular site among authors and publishers, but that doesn’t make it illegal.

Given that red flag takedowns are virtually meaningless and useless, it is almost certain the courts will favor Scribd on this case. That is, barring a surprise in discovery that shows Scribd had some unexpected level of knowledge or ignored DMCA notices.

The second argument, the one involving the copyright filtering system, also looks to be equally doomed. If the Scribd copyright filter is anything like every other such filter I’ve seen, it operates on fingerprints and not the work itself (doing otherwise requires exponentially more computing power). As such, the facts of that case mirror closely the Turnitin lawsuit, which iParadigms, the makers of Turnitin, won handily.

Turnitin is a plagiarism checking service commonly used by high schools and colleges to look for matching text in student’s paper. As part of the service, it stores a fingerprint of every essay scanned to match against future works. Four students in Virginia objected to this and sued the company but lost with the judge saying that the use of their work was transformative and a fair use.

Even Camara’s argument that “They are building up a valuable asset that nobody else is going to have by taking work from authors without sharing with them the profits,” falls flat. iParadigms is actively selling access to this database and does so to many thousands of institutions. In short, Camara’s worst fears have already been realized in the iParadigms case and the judge still found it to be a fair use.

Whether you agree with that verdict or not, it is clear that it seems to put the Scribd case in a very bad spot.

To be clear, I am not an attorney but these counter-arguments only took me a minute or two to think up. They are patently obvious, especially considering the Veoh case was thrown out mere days before this suit was filed, and it makes this case look doomed to fail. However, that doesn’t mean it won’t have an impact on the copyright climate.

The Real Problem

Copyright filtering services are for the good of both the hosts that offer them and for copyright holders. Hosts don’t have to spend manpower and time removing works via DMCA that can instead be blocked at the gate and copyright holders don’t have to file notices for the same works over and over again.

Though there are some cases where a copyright holder would not want to be in such a database, for example if they only wanted to stop plagiarized uses, not attributed ones, this wasn’t the case for Scott. Since the only use a fingerprinting system has is matching one work against another, for example plagiarism detection or copyright filtering, pretty much any commercial use Scribd had found for its database would have also been beneficial.

However, Scribd has taken no such steps and expressed no intent to do so. It’s matching database, much like YouTube’s, is proprietary and closely guarded. The mere fact that they could do something doesn’t warrant a preemptive strike, especially when what they are accused of possibly doing was found to be a fair use in another case.

What this case might do, however, is make other companies more skittish about developing “takedown stay down” systems. This would likely be a major blow to the smaller artists who lack the resources to file takedown notices on every single misuse of their work but still license their works in a way where such a system would be practical.

This also might have an impact in discouraging companies from entering into areas where takedown notices might be frequent. Faced with the choice of having to spend the manpower to remove every work subject to takedown notice or being sued for a filtering system, some will likely just walk away. This, in turn, could give rise to more legally dubious sites.

After all, if showing good faith either bankrupts your startup or gets you sued, there isn’t much point in showing it at all. It may be more attractive to move to a country with more relaxed regulations and avoid the problem all together.

In short, by suing the people who tried to help her, she may be hurting every other copyright holder in the world.

Bottom Line

In the end, most copyright experts, including Ben Sheffner and Eric Goldman (who many more reasons why the outlook is bleak for Scott) are skeptical about the suit’s future.

Pretty much all of the recent case history goes against Scott in this matter but, more importantly, logic itself is against her.

Though it is understandable that authors and artists want to protect their work and profit from as many uses of their content as practical, suing a company for infringement when they are trying to prevent your work from being infringed is a classic case of cutting off your nose to spite your face. It makes no sense and will only cause more problems, most of them for other copyright holders.

This case is most likely doomed but the sooner it is thrown out the better. The more fear Scott can sew into the providers who act in good faith, the more room others have to grow.