Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Gawker Removes Leaked Sarah Palin Book Excerpts

First off today, Gawker media was forced to remove excerpts from Sarah Palin’s unreleased second book from its namesake blog after a copyright complaint by Palin’s publisher Harper Collins. Palin had seen the excerpts and tweeted about them, prompting another blog post from Gawker making fun of Palin’s displeasure, but Harper Collins filed suit against Gawker on Friday and received a court order that brought the excerpts down pending a cout hearing on the 30th. Gawker will most likely attempt to claim fair use in the excerpts but may have an uphill battle as unpublished works are granted greater protection.

2: “Put Up or Shut Up” Time for US Copyright Group

Next up today, the judge overseeing the U.S. Copyright Groups’ litigation against thousands of suspected file sharers may be running out of patience. With thousands of potential defendants already having been named by their ISPs, having received a settlement letter and not being named in the suit, the judge has given the group until December 6 to name those that it wished to sue in that court, an indication that the court is losing patience with the process. The U.S. Copyright Group had requested an extension of five years as the court had ruled Time Warner, a major ISP, was only required to send a few contacts per month, requiring five years for them to complete the entire list, but the judge ruled that would be unfair to the defendants who had already been named by their ISPs.

3: Daily Mail Accused of Copyright Infringement, Once Again

Finally today, the London newspaper the Daily Mail is in copyright hot water again after another photographer has found his photo being used on the paper’s site without permission or payment. The paper recently found itself in a lawsuit with another photographer, where the paper famously claimed that, since the image was distributed over TwitPic, that they had been given an implied license to use it. Most legal experts find that to be a stretch of an argument though the case is being closely watched.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Jail-Breaking Law Change Will Have Limited Impact: Analysts, Companies

First off today, analysts are concurring with my opinion that the new exemptions to the DMCA’s anti-circumvention provisions will have little practical impact, especially in terms of jailbreaking. Not only has jailbreaking been occurring without retribution by Apple before the new exemptions were handed down, but other protections, such as terms of services signed at the time of signup and invalidated warranties still protect the iPhone (and other handsets) from being jailbroken. In short, most of those who want to do it have done it and those who don’t likely won’t be swayed by the new rules.

2: R-J Mob Source Hit With Copyright Suit

Next up today, mob enforcer turned government witness Anthony Fiato is the latest person to be sued by Righthaven on behalf of the Las Vegas Review-Journal. Fiato had used several articles about the mafia from the Review-Journal on his blog, which is hosted at wordpress.com. Fiato is in the witness protection program and Righthaven is seeking some $75,000 in statutory damages from him. Fiato, for his part, feels that the suit was a “mistake”.

3: Publisher Fined Record $250M in Copyright Case

Finally today, a court in Russia has handed down the largest copyright award in the nation’s history, some 7.6 billion rubles in damages or about $250 million. The judgment was filed against the publishing company Astrel, owned by its parent company AST, which the court found had illegally published copies of science fiction author Alexander Belyayev’s books and calculated the damages by multiplying the copies of his books AST sold by the cost of a luxury set of books sold in Italy. The amount of damages is approximately equal to AST’s annual turnover making it unclear if and how AST/Astrel will be able to pay.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

Want the Full Story?

Tune in every Wednesday evening at 6 PM ET for the live recording of the Copyright 2.0 Show or wait and get the edited version Friday right here on Plagiarism Today.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

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.

Earlier this week, Mark Helprin, the author of the book Digital Barbarians, posted a defense of his book on the National Review Online. Seeing as how I was among the sharp critics of the work, I felt it appropriate to respond.

Dear Mark Helprin,

I have to wonder what you would think of me if you met me. I’m a strong supporter of copyright. I operate a site called Plagiarism Today where I help small artists and Webmasters protect their creations and defend their works against plagiarists, spammers and others that would seek to misuse it. I also manage a company called CopyByte.com, which provides managed copyright solutions for small businesses.

However, I am also a member of what you would call the digerati. I blog, use wikis, have an iPhone and even place Creative Commons Licenses on my works. Though I believe copyright reform to be necessary, I also believe in the necessity of copyright very strongly and see reasonable reform as a way to rebalance the law to protect it for the future.

When I read your book, I felt I had no choice but to give it what can be politely called a scathing review. I didn’t like your book and I didn’t enjoy it and I don’t know of anyone who did. It’s that simple.

To be clear, it wasn’t your opinions that drove me away. I routinely enjoy books and other works I don’t agree with, your book just wasn’t one of them. I don’t agree with everything written by Lawrence Lessig, Bill Patry or even Ben Sheffner on his blog, but I read and enjoy of them. They are good writers with good arguments.

As I said in the closing of my review, “The novel-length copyright polemic is one that few authors can tackle. Helprin is not one of them. Though I think he is a very talented writer and may look up some of his other work, this is not the format for him.”

However, as a critic of your work I read with great interest your recent rebuttal to all of us. As I plowed through it, several things dawned on me that I feel should be put in plain English.

You Don’t Know Me

First, you say in your rebuttal that one of the critical responses to your book was that we, the critics, didn’t “understand” you. You may well be right about that. However, it is equally clear that you do not understand the groups you attack.

As I said in my review, you paint those who favor copyright reform with a combination of broad strokes and petty insults. In your view, those with CC licenses are raving anti-copyright lunatics Hell-bent on abolition, no matter what their actual views and intentions are. This alienates centrist figures such as myself and makes your arguments laughable to those further on the left.

Maybe we critics don’t understand you, but it definitely appears the feeling is mutual. However, we are not the ones writing a polemic about copyright and we are not the ones writing to convince an audience. The onus to both understand and be understood is on the author.

On that note, making yourself and your arguments understood is another failing of the book. You claim that your critics feel it “necessary to their physiology to think that I am for perpetual copyright,” and it is true many reviews made that claim. While you have stated repeatedly that you aren’t, you are also the one who has, both in the op-ed and the book, made favorable comparisons between intellectual property and physical property and based many of your arguments accordingly.

Doing so is a bit like saying you’re not in favor of longer prison sentences for inmates, but still wish that our system could be more like North Korea’s. It is a mixed message. However, how can we “digerati” hope to understand this message when even the headline writer at the New York Times missed it, giving your now-infamous op-ed the headline “A Great Idea Lives Forever. Shouldn’t Its Copyright?”

You also complain that a particularly insulting paragraph, quoted in your rebuttal, made it into nearly every review. I have to plead guilty as I used snippets from it as well. But the reason is apparent. When you read it, it leaps off of the page and becomes a “Holy Cow! Did he just say that?” moment. When I read that paragraph, I heard the sound of a thousand page corners being turned down in my head.

I understand well what it is like to have a mob show up at your door over a misunderstanding or a single quote in a long work. It’s frustrating, especially when you feel you have valid points buried within. But as writers we both have to take responsibility for what we produce. You penned the paragraph, you chose the words, the fact it became a lightning rod for criticism should shock no one, the least of all you.

The results were, to say the least, predictable and the fact that it distracted from your was a misstep on your part. In the bid to make clear, easy-to-understand arguments, the author has to take the lead.

Still, you are right, we don’t understand you and it seems clear you don’t understand us. However, this is not a failing of those who read your book and posted critical reviews, it is your fault. It is a failing both in research and in writing that you failed to clearly grasp your audience and clearly state your arguments to them without distractions.

Who’s Book is it Anyway?

This failure is highlighted in your rebuttal. You complain that, “Nearly every publication, left, right, and center, assigned the book, with digital in its title, to a resident digeratus, a member of the very tribe I provoke….”

This would seem, to me at least, to be the exact group you would want reviewing your book. The goal of a polemic is not to hear oneself talk or preach to the choir, but to convince the other side of your truth and make them agree with you. Anyone else reviewing your book would be a poor test of its effectiveness.

This raises the question of “Who was this book for?” Given that your rebuttal also slams “the corporate defenders of intellectual property” as people who “sit inertially in their towers and forfeit the more general debate,” it seems as if the book was written almost solely for Mark Helprin.

You found yourself alone in your arguments not because there aren’t a few points where you have some merit and a defendable position, but because you have worked to alienate everyone who might have come to your aid.

Bottom Line

In the end, I agree with the reviewers who feel that you do not know what you are talking about. I don’t say this because you mentioned Slurpees and Hip Hop though they predated the digital age or that you cited Mozart and Raphael, both of whom worked without copyright protection.

Instead, I say confidently you don’t know what you’re talking about because you claim, with your op-ed, you were, “In complete innocence that I was parachuting into a holy war.”

Mr. Helprin, your op-ed was published in 2007. The DMCA was passed in 1998, Napster was shut down in 2000, the Grokster ruling was in 2005. If you had performed as much as a Google search on the topic, you would have seen the dangerous waters you were treading into. It is clear you “parachuted” blind and now take offense that people claim you don’t know what you’re talking about.

But even if I can forgive your ignorance in 2007, you showed a similar kind of ignorance in your book, as if the backlash to your op-ed and two years of writing had not lead to one ounce of new research. You knew almost nothing about your opponents other than they used technology and, at times at least, had very poor grammar. Thus, you argued the wrong points and presented a case so out of step with both the times and the actual arguments that almost no one could take you seriously.

The problem with Digital Barbarians is simple. It is a bad book. Rather than blaming your audience and your reviewers, there comes a time where you have to take blame for your own mistakes.

There is room for a good pro-copyright polemic out there, but this is not it. I admire your attempt but, in the end, I think your book did more harm than good to the causes you support.

If you are able to take the criticisms to heart and learn from your mistakes, you may be produce a really great work in this area. But if you can’t, then there is no hope.

But then again, what do I know, according to you I’m just a Slurpee-sucking geek who seldom sees daylight (though technically I prefer Icees).

Sincerely,

Jonathan Bailey

Fortunately, long-time friend of the site Patrick O’Keefe recently released a book targeted at helping forum and community administrators run their sites. The book, entitled “Managing Online Forums“, is a broad guide to running a Web-based community.

It is a book that all forum administrators, especially new ones, should look at picking up. Not only can the advice in this book help you grow your community, but it can also help keep your site on the right side of the law and a good neighbor on the Web.

A Practical Guide

Perhaps, the best way to describe O’Keefe’s book is “down to earth”. The book is not merely content on providing the information forum admins needs to do their jobs, but to provide real-world examples.

Throughout the book there are call outs and sample documents for readers to look at and mirror on their own sites. For example, chapter three, which discusses setting up forum guidelines, not only details the requirements for a good set of forum rules, but provides several examples of good guidelines, including some used on the author’s actual forums.

Likewise, chapter six, which discusses how to handle problem users, is laden with actual stories of forum participants gone wild, almost all of which are pulled from the author’s actual experience as a forum administrator.

But while the examples and hand-holdiong may help gear the book toward novice admins, a group for which there is precious little help, there is enough detailed information to make it useful for veterans. Specifically, the later chapters about adding new features to the forum and making money will likely have strong appeal to forum veterans and those already running sizable communities.

Still, the majority of the book is definitely geared toward inexperienced admins and works to help them learn the lessons in print that most have to learn the hard way.

Why This Book Is Important

As someone who has worked with dozens of community and forum admins, I know well how “over their heads” many admins get. This is especially true when it comes to legal matters, such as copyright infirngement, trademark issues and privacy.

With forum software, such as phpBB, often being as easy to install as one click and free community sites such as Yuku making it easy to set up and run your community with no cost, the decision to set up a community is often an impulse one made without consideration of the practical requirements.

This lack of administrator preparedness is big part of why forums are being used as spam blogs and communities are often some of the most difficult sites to get infringing works removed from.

An administrator that is unprepared to handle the realities of running a community does a disservice not only to their members, but to the rest of the Web. Fortunately, this book not only makes it easy to learn what you need, but provides the tools to execute an effective strategy.

If you are setting up a forum or even just thinking about it, this is information that you can not afford to be without.

Conclusions

If I were going to lob a complaint at this book it would be that its audience focus was too narrow. Though bloggers and other Webmasters may get some out of the book, it is clear that the vast majority of the content is geared at forum admins and, more specifically, novice admins.

Still, this is an important group to target. Not only do they need the most help establishing and growing a healthy forum, but also with dealing with the inevitable headaches that come with it. Those who have been “behind the curtain” of large forums are a fairly small group and, overall, are reluctant to share their information.

On that note, if you do not purchase a copy of the book, you can visit the book’s Web site and download the relevant templates, including user guidelines, staff member guidelines and contact templates (for when a user violates a rule).

The point is though, no matter where you get it from, this is information every forum admin needs to know. The greatest asset this book has is combining the information into one resource.

However, for me, that is reason enough for it to have a place on my shelf.