Going Too Far In Kowtowing To Copyright Holders

from the public-domain-and-fair-use-exist... dept

In the past, we've used the website Scribd to upload documents that we want to show readers here -- usually things like court filings. It's a decent solution, and often better than providing a link to a pdf which annoys some people (myself included). Recently, the company has come under some misguided fire by copyright holders, falsely accusing the company of somehow making it easy to infringe on copyrights. The company has pointed out that beyond its existing DMCA safe harbors, the company goes above and beyond in helping copyright holders stop unauthorized use. In fact, we've defended the company against unfair attacks. However, it looks like the company has ramped up its attempts to appease copyright holders, and in some cases may be going too far. We already pointed out how it took down a public domain book (though it was quick to fix that mistake).

The latest, though, is that I just went to upload another document (a public domain court ruling), and as I did, I saw that Scribd now requires me to check off a box saying: "I certify that I own the copyright to these documents." That was troubling to me, because I do not own the copyright on this particular document... no one does. As I moved to upload the document at a competing site (DocStoc), I Twittered the dilemma, noting that I wasn't sure what to do. To Scribd's credit, it took a company representative all of three minutes to respond that public domain documents were okay, and that they would update the language of the uploader to make this clear. A quick response, which actually makes me feel good about Scribd, but... at the same time highlights the problem.

After getting so much pressure from copyright holders, Scribd feels the need to be extra proactive in "protecting" copyright, even to the point where its default decisions go too far. While it will now clarify that public domain documents are okay... what about cases where the document would be fair use? Someone should still be able to upload the document without declaring that they own the document or that it's in the public domain if it's a fair use case. This certainly isn't putting any of the blame on Scribd, who seems to be bending over backwards to satisfy everyone. But that's a part of the problem. The copyright holders are clearly pushing well beyond what copyright allows them to do, and it's putting pressure on Scribd to respond -- with the early response going so far as to wipe out certain user rights. The copyright supporters love this, because they don't care much about trampling user rights, but it shows just how screwed up things are that a company like Scribd even needs to be put in this position.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Evil Mike, Apr 14th, 2009 @ 9:38am

    Force...

    The threat of force can be as or more effective than force itself.

    Therefore, the threat of 'legal force'...

     

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  •  
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    The infamous Joe, Apr 14th, 2009 @ 9:40am

    What's next?

    Car manufacturers will soon be responsible for making you use your turn signal, including a check box when you purchase the car.

     

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    identicon
    Anonymous Coward, Apr 14th, 2009 @ 9:41am

    Fair use is a "defense" to an action for copyright infringement. Moreover, it is fact dependent. I can well understand why a website would not be inclined to accept a declaration of "fair use" at face value.

     

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    •  
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      Chronno S. Trigger, Apr 14th, 2009 @ 9:56am

      Re:

      But to file a DMCA take down notice, one must not only be the owner of the copyrighted material but also take into account fair use.

       

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      •  
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        Analyst (profile), Apr 14th, 2009 @ 10:22am

        Re: Re:

        CST: You assume people actually adhere to the law in this situation. All it really takes to file a DMCA takedown notice is to file the DMCA takedown notice. The application of this segment of law has devolved into "ask [for the takedown] and you shall receive", regardless of actual legality. Fair use and other tests are often not performed until after the content has already been taken down.

        In other words, you can use fair use to fight a DMCA takedown request, but that will never prevent an asshole from filing it or from dragging you through the legal hassle.

         

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        chris (profile), Apr 14th, 2009 @ 11:20am

        Re: Re:

        But to file a DMCA take down notice, one must not only be the owner of the copyrighted material but also take into account fair use.

        riiiight. fair use is always a consideration, which is why the EFF and others have to get involved on behalf of so many.

         

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      Anonymous Coward, Apr 14th, 2009 @ 10:36am

      Re:

      As noted, Safe Harbors make it so that the (qualifying) websites isn't liable for the actions of their users ,i>at all, not even for actual infringement let alone disputed fair use.

       

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        kirillian (profile), Apr 14th, 2009 @ 11:01am

        Re: Re:

        DMCA takedowns have been so abused and copyright holders have been so promiscuous in filing expensive lawsuits that companies can't afford to bank on Safe Harbors actually protecting them. THIS is the problem. When the government can't even protect its constituents, then we have an issue...

         

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    LostSailor, Apr 14th, 2009 @ 9:43am

    Fair Use?

    Mike, can you provide even a hypothetical example where "uploading a document" to which you don't have copyright permission would be fair use?

    If you're uploading a document you wrote that fairly quotes some copyright material, that wouldn't be a problem since you would have copyright in that document.

     

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      Mike (profile), Apr 14th, 2009 @ 9:46am

      Re: Fair Use?

      Mike, can you provide even a hypothetical example where "uploading a document" to which you don't have copyright permission would be fair use?

      Let's say I'm writing a critique of a single part of a book and upload one page. Since the nature of the use is commentary, the purpose isn't commercial and only a small segment is used, that would almost certainly all under fair use.

      Or, if you want to pull an example out of the news itself... what if I'm uploading a small image of concert poster for the purpose commentary. There was the recent court case that found that to be fair use as well.

      I could think of plenty of other examples as well...

       

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        LostSailor, Apr 14th, 2009 @ 10:11am

        Re: Re: Fair Use?

        Thanks.

        What I understand you to be saying is that you are writing a commentary on a book or concert poster and that you want to upload not your commentary, which includes fair use quotes or an segment of an image, but just the quoted, copyrighted material so you can refer to it in your commentary.

        If that is correct, I think you'd be stretching a claim of fair use, since you will have uncoupled the uploaded material from your commentary and severed the fair use connection to your commentary from the upload as viewed on a service like Scribd.

         

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          Anonymous Coward, Apr 14th, 2009 @ 10:41am

          Re: Re: Re: Fair Use?

          Your interpretation, then, would mean that things which are actually fair use could never be present on the Internet.

          Example: at an event I play clips of a movie to my audience as part of commentary and critque on the movie itself. Fair use. However, because of the way the Internet works, there is no way to place those same clips with a transcript of my commentary because everything on the Internet is piecemeal.

           

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            LostSailor, Apr 14th, 2009 @ 11:51am

            Re: Re: Re: Re: Fair Use?

            Your interpretation, then, would mean that things which are actually fair use could never be present on the Internet.

            Not at all. There are probably thousands of instances of fair use all over the Internet, every day. Most blog posts fall into this category, where quotes and clips are used for commentary widely.

            However, because of the way the Internet works, there is no way to place those same clips with a transcript of my commentary because everything on the Internet is piecemeal.

            Not everything on the Internet is piecemeal by a long shot. There are any number of ways you could embed those clips within the context of your presentation. It may take some slight effort and forethought to do so, but, again, thousands of people seem to be able to do this everyday on the Internet without a problem.

             

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        DrJ, Apr 14th, 2009 @ 11:17am

        Re: Re: Fair Use?

        You make a plausible case except for one signifigant mischaracterization; If this applied to partial copies then your case would stand a reasonable test. Unfortunately the reality is that many users are copying entire works (articles, songs, movies) and posting them for the purpose of sharing (under the guise of fair use) when in reality a considerable percentage are pirating (theft by any other name).
        I support making a copy of something or for backup or time-shifting but the technology is easy to pervert and many use your argument to justify theft.

         

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    hegemon13, Apr 14th, 2009 @ 9:44am

    Where would fair use apply?

    If the document you upload is fair use, it means that it IS yours. It may contain some excerpts from other documents, but if yours is sufficiently transformative or provides commentary, the resulting document is yours, so you can declare it as such. Where could fair use apply that you could not declare the document as yours? (Except for public domain, which has already been addressed.)

    The fact that Scribd responded to concerns about public domain within three minutes shows that they are closely monitoring this to see how it affects users and adjusting their system to address issues. How are they doing the wrong thing here? How is asking a user to declare that they have the right to upload what they're uploading going "too far"? You may not like current copyright law, and I tend to agree with a lot of that. However, it is still currently the law.

    "The copyright holders are clearly pushing well beyond what copyright allows them to do..."
    What? Asking users not to upload unauthorized copies of their work, and seeking the cooperation of the platform provider to assist with curbing such uploading? No, as a service provider, Scribd does not have to cooperate, but they have the right to, and the copyright holders have the right to request cooperation even where it is not legally required.

    Besides, this action is really just a token action, anyway. That checkbox doesn't stop anyone from uploading unauthorized copies any more than the "I'm Over 18" button stops minors from entering adult sites.

    I think you have REALLY blown this one out of proportion and provided that much more fodder for the Weird Harolds out there.

     

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      Anonymous Coward, Apr 14th, 2009 @ 9:57am

      Re: Where would fair use apply?

      If the document you upload is fair use, it means that it IS yours.

      You really don't know what you're talking about, as usual.

       

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        hegemon13, Apr 14th, 2009 @ 11:16am

        Re: Re: Where would fair use apply?

        Actually, I don't think I was clear enough, as you and Mike both misunderstood my intention. What I meant, is that if you write a document which includes, for example, commentary along with fair-use excerpts from other documents, then you own the copyright on the new document as a whole. Stephen King, for example, owns the copyright on Danse Macabre, despite the fact that it contains excerpts, screen-captures, etc, from other works. I did NOT mean to suggest that you own the copyright on the excerpts or the original documents from which they were sampled.

        That said, making an ad hominem attack, as you did, without any facts or details just makes you look like an middle-school ass. And to do it anonymously is just, well, cowardly.

         

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          identicon
          Anonymous Coward, Apr 17th, 2009 @ 10:09am

          Re: Re: Re: Where would fair use apply?

          Actually, I don't think I was clear enough, as you and Mike both misunderstood my intention.

          People can only go by what you write. We can rad your mind and know that you meant something different. If you meant something different, you should have written something different. As it is, you're just busted (again).

          That said, making an ad hominem attack, as you did, without any facts or details just makes you look like an middle-school ass. And to do it anonymously is just, well, cowardly.

          Actually, it's based on your own reputation and the evidence is all in the Techdirt archives. But talk about ad hominem attacks, it looks like you're the first one engaging in name calling. And criticizing someone for posting anonymously? That's funny, coming from someone who's posting anonymously. I know, why don't you post your identity (full name, address, employer, SSN, etc.)?
          (sound of crickets)
          Yeah, that's what I thought. You really take the cake. What a hypocrite.

           

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            identicon
            Anonymous Coward, Apr 17th, 2009 @ 10:12am

            Re: Re: Re: Re: Where would fair use apply?

            Oops, dropped characters. "can rad" should have been "can't read"

             

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      Mike (profile), Apr 14th, 2009 @ 10:46am

      Re: Where would fair use apply?

      If the document you upload is fair use, it means that it IS yours.

      That is not true under any definition of the law. Fair use is an exception. It does not mean you own the copyright on the document.

      if yours is sufficiently transformative or provides commentary, the resulting document is yours

      But what if the document is not transformative, but the use of it is fair use? That's not covered by the check box.

      How is asking a user to declare that they have the right to upload what they're uploading going "too far"

      They did not ask "do you have the right to upload this document." They asked: "I certify that I own the copyright to these documents." There's a big and important difference.

       

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        identicon
        hegemon13, Apr 14th, 2009 @ 11:07am

        Re: Re: Where would fair use apply?

        What I meant is that the new document, such as the excerpt coupled with your commentary, is yours, not that you own the excerpt itself. If you are uploading just the copyrighted pages for the purpose of commentary elsewhere, does that count as fair use? It seems like there could be a legal argument there, but perhaps one that Scribd does not want to be involved in. Why not just include the commentary in the document, and then legitimately check the box?

         

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    identicon
    Anonymous Coward, Apr 14th, 2009 @ 9:55am

    Satisfaction

    This certainly isn't putting any of the blame on Scribd, who seems to be bending over backwards to satisfy everyone.

    Really? So, you were satisfied that you couldn't post a public domain document?

     

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      The infamous Joe, Apr 14th, 2009 @ 9:57am

      Re: Satisfaction

      Well, he *could* upload it, he'd just have to "lie" to do it.

      They should word it more like "I certify that I am being a good boy/girl."

       

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    twitgnorant (profile), Apr 14th, 2009 @ 11:16am

    scribd response

    Mike (or anyone),

    I know you twittered about it and scribd answered in a few minutes. Are they following YOU on twitter or could I twitter about scribd and expect some response? I guess I don't "get" twitter - but I don't see how they knew about your tweet in order to respond nor do I understand how they responded. Please explain.

    Thanks.

     

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      Mike (profile), Apr 14th, 2009 @ 11:39am

      Re: scribd response

      I know you twittered about it and scribd answered in a few minutes. Are they following YOU on twitter or could I twitter about scribd and expect some response? I guess I don't "get" twitter - but I don't see how they knew about your tweet in order to respond nor do I understand how they responded. Please explain.

      They were not following me at the time (they are now). I'm guessing they were running a constant search. I do the same thing. I use software called Tweetdeck, and within seconds of anyone mentioning Techdirt on Twitter, I get a notice about it. My guess is they do something similar, and any time anyone mentions Scribd, it pops up in a window.

      Then, once they saw that I had mentioned Scribd, they just replied to my post via Twitter.

      So, yes, if you Twittered about Scribd, you could expect the same response.

       

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    identicon
    RD, Apr 14th, 2009 @ 12:00pm

    Once again...

    Once again for all those in the cheap seats and the corporate scum like Weird Harold:

    COPYRIGHT IS NOT ABSOLUTE!!!

    say it with me, say it proud.

    COPYRIGHT IS NOT ABSOLUTE!!!

    You have a LIMITED rights for a LIMITED TIME (though thats getting absurd now) to exploit your work. People are using the copyright sledgehammer WAY too much these days, and it has the effect of everyone being afraid of doing ANYTHING for fear of being sued. And you are getting absurd ideas about the extent of copyright coverage, like people thinking you cant take a picture of them because their person is "copyright." Sorry, wrong, you cant copyright a human being. You can copyright a specific image taken of a human being, but you cant copyright the PERSON such that it prevents pictures being taken. Thats not copyright, thats privacy and is covered under different laws (harassment, civil rights, etc)

     

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    pr, Apr 14th, 2009 @ 12:46pm

    Just one more click

    Never mind the actual copyright issues, there's a pervasive attitude that just one more mouse click never hurt anyone.
    What does anybody think they're proving by forcing users to check some box that doesn't mean anything?

    When I try to book travel on my employer's officially sanctioned web site, I have to enter my "international travel authorization" number, even if I don't have one because I'm not traveling internationally. Somebody somewhere decided that those international travelers weren't properly entering their international travel codes, so they would make EVERYBODY enter one. It's just one more mouse click. Multiplied by thousands of users every day.

    When I fill out my expense report I have to check the box where I swear I'm not defrauding anyone, nor have I used the funds to commit any international crimes to bribe foreign officials even though it might be legal in their country. I can't get reimbursed for my legitimate expenses unless I swear that I didn't commit a crime with the money. It's just one more mouse click. Who the hell would admit that they did commit an international crime? (If you knew who I work for and what international crimes they have committed you'd really find that funny.)

    When I turn on my TomTom I have to swear that I'll drive safely. Some damn lawyer's idea that they'll be able to avoid one of those class action lawsuits brought on by the user's stupidity. They won't, of course, but it's just one more click. My clicker's clicked out. I'll sure never buy another TomTom, but that's just one of the reasons.

     

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    identicon
    JimE, Apr 20th, 2009 @ 1:40pm

    Scribd check box

    Scribd now requires me to check off a box saying: "I certify that I own the copyright to these documents."

    There are several other instances where I can legitimately upload a digital object for which I do not hold the copyright. For example, many of the Creative Commons licenses allow users to do so. Thus, as noted by several people, the Scribd check box is too rigid.

     

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