1: Pirate Bay Owners Fined by Dutch Court

First off today, three of the founders of The Pirate Bay, Peter Sunde, Frederik Neij and Gottfrid Warg, were fined by a Dutch court for not disabling access to the site in the Netherlands. The founders claim they no longer own the site and instead sold it to a company called Reservella Ltd., based in the Seychelles. However, no proof was provided of the sale and records show Neij to be the CEO of the company. The owners were ordered to pay €50,000 for failing to shutter the service in the Netherlands though it is unclear how they will collect the fines as the trio are based in Sweden.

2: Lawsuit Dropped; Claimed That Copyright-Filtering Violates Copyright

Next up today, a lawsuit against Scribd, filed by the attorneys who defended Jammie Thomas in her case against the RIAA, has been dropped. The plaintiff, children’s author Elaine Scott, claimed that Scribd’s copyright filtering technology, which stores copies of works to match against those that are uploaded, is in and of itself a copyright infringement. It seems the attorneys in the case have backed away from the case, having missed several deadlines.

3: Bomb-Making Tips, Hit List Behind Blogetery Closure

Finally today, it seems that the mystery behind the closure of Blogerty has been solved and it bomb-making tips and a hit list, not copyright, that shuttered the blog hosting service. The site, along with all of the blogs it hosted, disappeared from the Web due to action from the U.S. government, many suspected copyright to be the cause though the style of takedown had not been seen in copyright enforcement. According to CNet, the site’s host has now said that it was closed following an information request from the FBI regarding terrorist material hosted on the service. The host closed the service voluntarily after the request.

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.

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.

It is Monday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a busy week for copyright news with tons of great stories from around the world including a major update to the Google Book Search settlement, a new Copyright Czar, four stories from the rap world and a rather shocking lawsuit against Scribd.

All in all, there were thirteen stories this week including news from all over the copyright world including our “Weird Story of the Week”.

This week’s stories include:

• Google Book Search Settlement to Drawing Board
• Copyright Czar Appointed
• Eminem’s Publisher Squares Off with Apple
• More Bias Accusations in Pirate Bay Appeal
• Guess Who Sued Scribd?
• And Many more…

You can download the MP3 file here (direct download). Those interested in subscribing to the show can do so via this feed.

Show Notes

About the Hosts

Jonathan Bailey

Jonathan Bailey (@plagiarismtoday) is the Webmaster and author of Plagiarism Today (Hint: You’re there now) and works as a copyright and plagiarism consultant. Though not an attorney, he has resolved over 700 cases of plagiarism involving his own work and has helped countless others protect their work and develop strategies for making their content work as hard as possible toward their goals.

Patrick O’Keefe

Patrick O’Keefe (@iFroggy) is the owner of the iFroggy Network, a network of websites covering various interests. He’s the author of the book “Managing Online Forums,” a practical guide to managing online communities and social spaces. He maintains a blog about online community management at ManagingCommunities.com and a personal blog at patrickokeefe.com.

1: Are Tweets Copyright?

First off today, a new post by Mark Cuban regarding whether or not tweets are copyrighted has raised quite a stir. In it, he asks if tweets are copyright able and, if so, is their republications, including via retweeting, an infringement.

I actually touched on many of these issues earlier this year on the Blog Herald and it seems what I wrote has held up reasonably well. But obviously Mark is right to ask the questions as there is a lot of legal gray area with copyright and Twitter, as there is with any new technology.

2: Harry Potter Author JK Rowling Attacks Scribd For Pirated Content

Next up today Harry Potter author J.K. Rowling seems to have had at least some form of disagreement with “YouTube for documents” site Scribd. However, the actual nature of that disagreement seems to be very much in debate.

Initially it was reported that the author had sued the site for allegedly hosting copies of her famous books but updates to the story indicate that no such lawsuit has been filed though it is likely Rowling and her publisher used Scribd’s takedown process to remove some of those works.

In the end, it appears to be much ado about nothing as there is very little to report.

3: Jeff Vogel’s View From the Bottom #11

Finally today, independent game developer Jeff Vogel has posted a lengthy editorial cover the video game industries fight against piracy in which he draws the conclusion that all game developers are, essentially, charities since the only reason to buy the games is to feel good and do the right thing.

Vogel also concludes that DRM is a failed strategy that only punishes legitimate customers but does clarify to say that he isn’t going to “give” anyone his game and he does use license keys. According to him, if someone wants to steal his games, they will actually have to steal them.

Suggestions

That’s it for the three count today, we’ll 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 Saturday morning for the live recording of the Copyright 2.0 Show or wait and get the edited version Monday morning right here on Plagiarism Today.