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| Chilling Effects Clearinghouse > Weather Reports > DMCA Double Take: Suit Claims No Safe Harbor for Scribd | 
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|  DMCA Double Take: Suit Claims No Safe Harbor for ScribdRebecca Schoff, Chilling Effects Clearinghouse, September 29, 2009 Abstract: We know what the safe harbor provisions in the Digital Millennium Copyright Act mean ... don’t we? A number of cases in California have confirmed what a straight-forward reading of the law would suggest: that the DMCA safe harbor provisions apply to hosting sites when those sites meet the requirements set out in section 512 of the law. (Perhaps most recently, a federal judge ruled in California that the safe harbor provisions applied to video-sharing site Veoh, see Veoh Survives Universal Music Group Copyright Infringement Suit.) Plaintiffs in a case just filed in Texas against document sharing site Scribd, however, would like to challenge that understanding. As you read on, bear in mind that a complaint is just one party's allegations -- not proof of facts or accepted legal theories. Plaintiffs can ask for anything, even one hundred billion dollars, but that doesn't mean they'll get it. BusinessWeek has described Scribd as “a kind of YouTube for publishing.” The lawyers of Texas law firm Camara & Sibley have a different way of describing the document sharing site and, indeed, the entire industry of hosting sites. In the complaint filed on behalf of author Elaine Scott, lawyer Kiwi Camara alleges that “under the aegis of self-promoting mis-interpretations of federal statutes, the West coast technology industry has produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to respond to such complaints. Apparently, they believe any business may misappropriate and then publish intellectual property as long as it ceases to use a stolen work when an author complains.” Camara is painting the current understanding of the DMCA’s safe harbor provisions with a very broad brush, and commentators have objected. (Some contend that the complaint paints the industry more in the style of Jackson Pollock—with little effort to represent reality. See Michael Masnick’s comments at Techdirt.) The "federal statutes" to which Camara refers are presumably sections 512(c) and 512(d) of the DMCA. For more information on them, see DMCA Safe Harbor and DMCA Notices. These statutes do not make it legal to infringe. The safe harbor provisions do, however, shield Internet or online service providers from liability for damages from the infringement as long as they comply with a series of requirements, which include, among other things, quick removal (“takedown”) of the infringing file in response to a complaint from the copyright owner. The copyright owner can still sue the users who uploaded the material onto a sharing site, for instance. As Camara knows from his unsuccessful defense of music file sharer Jammie Thomas in a suit by the RIAA, courts will enforce copyright law against end-users. (For more on Camara & Sibley’s history with copyright cases, see Ars Technica.) The safe harbor provisions make it possible for hosting sites and Internet service providers to develop technology for legal forms of file sharing and provide service to non-infringing users without the fear of constant litigation. On the other hand, the legislation does permit copyright holders to clear the harbor by informing ISPs and OSPs of infringement on their networks or sites: A provider who is properly notified of a specific infringement will not be eligible for safe harbor if it leaves the file up. Read this way, the law strikes a delicate balance. If the safe harbor provisions of the DMCA were not intended to shield online hosts from liability under the stated conditions, it isn’t clear what they were intended to do. The complaint in the Scott case does not elaborate. Curiouser and CuriouserEver since passage of the DMCA, we expect one of the key issues of any copyright infringement suit against a hosting site to be whether the site has met the stated conditions in order to qualify for the safe harbor. Usually the steps taken by a hosting site to prevent or remediate copyright infringement are evidence in its defense--not so in the Scott complaint. Scribd’s general terms of use disallow copyright infringement. The site also posts clear notifications of its These measures respond to requirements of sections 512(c) and 512(i) of the DMCA--and so should help the site qualify for the safe harbor, but the complaint in the Scott suit quotes from the FAQ, seemingly to argue that the FAQ’s correct acknowledgement of the rights of copyright holders is evidence that Scribd is a knowing infringer: "In documents published on their website, Scribd acknowledges that distribution of copyrighted content without the copyright’s owner [sic] permission is illegal. For example, the FAQ on copyright and DMCA states: '[d]istributing copyrighted content without the copyright owner’s permission is copyright infringement even if you give the document away for free.'" Under this logic, anyone who knows the law is a "knowing" infringer and the proper education of users incurs liability for a hosting site--surely a perverse result! The DMCA does not require online service providers to patrol their systems in an effort to prevent copyright violations. The law explicitly states that safe harbor protection is not to be conditioned on "a service provider monitoring its service or affirmatively seeking facts indicating infringing activity" (17 U.S.C. Sec. 512(m)). A number of sites do, however, take measures to prevent infringement. For a recent example, revisit the Veoh case: Veoh Survives Universal Music Group Copyright Infringement Suit. Veoh employed “hash” filtering and Audible Magic to scrub infringing copies from its network. Scribd has developed a Copyright Management System, a filter of its own that "fingerprints" works that have attracted a takedown notice so that the system will recognize copyrighted works and prevent users from reposting them. Scribd also allows any copyright holder to submit works to the Copyright Management System voluntarily, before there is an infringing post. In order to do so, copyright owners must sign an agreement not to sue Scribd if the filter fails and, in essence, to acknowledge Scribd’s compliance with the DMCA safe harbor provisions. Seems like that would help, right? Preventing copyright violations in response to takedown notices? Not in the Scott complaint. The complaint against Scribd actually cites use of the Copyright Management System as a separate violation, alleging that the "fingerprinting" of the work, which creates a pattern for the filter to use to block posting of the work, creates a "copy" that violates a copyright owner’s exclusive right to duplicate her work. Whether this is true as a matter of law depends on the particular facts of how the technology functions (is a "fingerprint" a copy?) and on the application of fair use analysis to the facts. (For more on the fair use defense, see Copyright and Fair Use. Essay comparison service Turnitin.com made successful fair use defense of its fingerprinting.) The complaint hints that the root of the problem with the Copyright Management System is that the filter itself might one day have separate value—perhaps the filtering system could be sold as a stand-alone copyright protection system for other sites--shouldn’t copyright holders get a piece of that pie? Camara hints darkly: "The value of the copyright protection system may someday exceed (or already has) the value of the document storage and retrieval system, especially if it were illegal to operate a Scribd-type business unless the business also implemented a copyright filter." But would copyright to a novel, for instance, confer rights to the profit in having created the filtering technology that protects the novel from illegal posting to the Internet? What seems patently evident for now is that the Scott complaint tries to spring a Catch 22 trap for hosting sites, as its arguments seek to hold the site liable both for missing infringements on its system and for attempting to catch them. Finally, the complaint Camara filed on Scott’s behalf promotes itself as a teaching moment for the IP legal community. The complaint quotes a lesson Ms. Scott offers to students when invited to speak about her work in classrooms. We think Camara’s use of the quotation is worth addressing here. It follows: Ms. Scott’s efforts to raise students’ awareness of copyright law are to be commended, but there are several unfortunate choices of words here that make this statement unsuitable for use in a complaint before a court of law and even, we regret to say it, misleading about the nature and extent of copyright. First, copyright does not confer ownership in words. Words most emphatically “belong” to us all. (The chilling effect of conferring ownership in words would be arctic.) Rather, copyright gives the creators of certain kinds of “fixed works” a series of exclusive rights in those works. It is the work and not the word that belongs, in a limited sense, to its creator. (See Copyright.) Putting it that way just doesn’t have the same ring as saying that words belong to you, but don’t knock it--the exclusive rights of a creator have real power. Second, the ownership conferred by copyright and the ownership one has in one’s lunch money are a little alike in the sense that horses are a little like chickens. They are both animals, but they are not the same animal. There are limits on copyright ownership, notably the limited duration and the fair use defense, that just don’t apply to my lunch money. And there are good reasons for that. When we talk about copyright, it’s worth trying to be as precise as possible about both the extent and the limitations of the rights conferred by law. When we approach a court, such precision is indispensable. Maybe the ultimate lesson to be learned from the Scott case is that the IP legal community has a role to play in educating the public and in fostering precision in the approach to intellectual property rights on the part of both potential plaintiffs and defendants. For further reading, the complaint in Scott v. Scribd has been posted on the Scribd site here. And the ads selected by the system to frame the document? They sell legal advice. |
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