One of the more interesting things about what's happening as the tech and startup world recognizes just how ridiculous SOPA and PROTECT IP are, is that many tech companies are coming up with their own unique and interesting ways to make their users aware of it. Tumblr blacked out its dashboard. Reddit set up a SOPA subreddit and has publicly advocated against the bill. Etsy alerted all of its users to the threat of SOPA on Etsy (multiple times). The latest interesting one, as noted by Alex Howard, is that Scribd has officially come out against the bill and is doing so by making text from various documents (including the analysis from famed Constitutional scholar Laurence Tribe about how SOPA & PIPA violate the First Amendment) disappear before your eyes, before asking you to call Congress.

We recently had a discussion about law professor Eric Goldman's complaints about Scribd, after the site, which he'd been using regularly to upload and share legal documents, quietly put up a paywall on older documents without making that clear to users. Suddenly, many old documents that Goldman had thought he was sharing with the world, were hidden behind a lock and key, unless you paid up.

While many people agreed that this was a mistake on the part of Scribd, in talking with Goldman separately about this, he noted that a few people strongly disagreed with his position, and noted (accurately) that he was getting a free service from Scribd, and thus he was "not a customer" and shouldn't complain at all. We received a few similar comments here, effectively suggesting that if you're not paying, you're not a customer and, thus, have no right to complain.

This is silly -- and wrong. It's where the often artificial distinction between "customer" and "user" and "product" gets blurry and, at times, questionable, especially in the realm of "user-generated" content. There are more ways to "pay" than with money. In Goldman's case, he's actually been "paying" Scribd by providing it with valuable, sought-after content that he uploads. Scribd is "paying" Goldman with free hosting, bandwidth and services. Advertisers are "paying" Scribd with money. Users are "paying" Scribd with their attention. All are "customers" in some sense, while also being users and, potentially, "the product," as well. Focusing only on the relationships where actual cash exchanges hands misses the point (greatly).

Once you realize that, it makes perfect sense for Goldman to complain. He was using the service under pretty explicit terms that he was providing these documents to share them with the world. Scribd unilaterally (and quietly) changed those terms on him, to something completely different. In turn, by pissing off Goldman, and having him seek alternatives, Scribd is actually harming its overall site. Even if you accept the narrow definition of "customer," to suggest that Scribd's only customers are their advertisers, pissing off Goldman should still be seen as a problem, because as Goldman uses alternative services, it lessens the "product" that Scribd can offer to those particular "customers."

So rather than going with the kneejerk, "well, if he's not paying for it, he has nothing to complain about," it's important to look at the overall ecosystem, and how different pieces are "paid" in different ways -- and how upsetting one key element of that ecosystem, can harm all sorts of "customers."

Last year, I wrote about some issues I had with the way Scribd tried to avoid liability by suggesting that public domain documents couldn't be hosted on the site or that fair use was not allowed. To the company's credit, it responded quickly and fixed the situation, but soon after that I switched to (mostly) using Docstoc to host documents. Doctstoc has its own problems as well, but for the most part has worked well for me. Still, in my experience Scribd is still quite popular among folks -- especially for uploading and hosting legal documents. Apparently, the company recently made some quiet changes and it's seriously pissed off law professor Eric Goldman, who has relied on the site for quite some time.

The key problem? Without clear notification, it took "older" (and older is left undefined) documents and put them behind a paywall. As Goldman notes, the whole reason he used Scribd was to make the documents available, and it was quite a shock to suddenly find them behind a paywall:

Scribd's paywall stunt instantly put Scribd on my shitlist because it vitiates the reason I chose to use Scribd in the first place. I don't know that they ever promised me perpetual free access to the documents I post, but their value proposition always has been open access to the documents--freely shared with everyone and indexed in the search engines. The paywall destroys that value proposition. They've taken the documents that I wanted to freely share with the public (many of them public documents like court rulings and filings) and made them inaccessible. If my readers can't freely get the documents I wanted to share with them, then what's the point of using Scribd in the first place???

I also feel like Scribd used me. With their implicit promise of open access, they got me to share a lot of high-interest documents and generate lots of link love, then they flipped the default (from free to paywall) as part of a cash grab. I could check out of Scribd, but then I would break a lot of links and it would take a lot of time. So now I feel trapped. It's a terrible feeling.

Goldman is looking at other options, including Docstoc and Rapidshare. Another one worth checking out could be Slideshare, or even potentially Google Docs. However, all this has me thinking again about the wisdom of relying on third parties for such things (even though I do it myself). I do like the ability to display PDF documents, such as legal filings, embedded within a post, but I'm wondering if there are any simple solutions for setting up that sort of thing on your own server. Anyone know of any?

Eric Goldman points us to the news that CBS sent a DMCA takedown to Scribd after the reality TV site RealityBlurred.com uploaded a copy of the contract castmembers sign before being able to go on the show Survivor, as well as a copy of the "rulebook" they receive. CBS apparently claimed that both of these were covered by copyright. Thankfully, RealityBlurred filed a counternotice, claiming fair use due to its use for reporting and commentary -- leading to a scary two week period where CBS would have to sue if it wanted to keep the document offline. However, the two weeks passed and CBS did not respond to notification from Scribd, meaning that the Survivor Contract and the Survivor Rulebook are back online. And, of course, in true Streisand Effect tradition, this attempt at taking down this info has only served to generate even greater interest in what's in the contract and the rulebook. As an aside, while I can see the copyright claim on the rulebook, I think CBS might have more trouble getting a court to recognize copyright on a contract that contains little creative work.

Last year, we wrote about the somewhat bizarre class action lawsuit filed against Scribd for copyright infringement. It was bizarre on multiple levels. First, the lawyers filing the lawsuit against Scribd were the same lawyers, Joe Sibley and Kiwi Camara, who had famously defended Jammie Thomas against copyright infringement claims. It seemed odd for them to flip to the other side. But, their actual case was even more ridiculous. It made blatantly false claims, such as that Scribd (and other "West Coast technology" firms") believed that "commercial copyright infringement is not illegal." Uh, yeah. But then it got even more bizarre. Despite claiming that Scribd didn't care about copyright infringement, the crux of the case was that its copyright filters infringed. Yes, part of the claim was that because Scribd uses a copy of the text within its filters, it's that copy that's illegal. Got that straight? The company is damned if they do and damned if they don't. If they don't filter, they're blamed for ignoring infringement. If they do filter, they're accused of infringing copyrights with the filter.

Either way, that case has now been dropped, officially due to a "settlement." However, the details provided suggest this was no real settlement. Scribd, in a statement, notes that Camara and Sibley not only failed to meet the basic deadlines related to the lawsuit, but they effectively walked away from this case:

Our lawyer, Brian Mendonca at Wilson Sonsini stated, "The fact that Scott walked away from this case without getting a dime proves that the DMCA offers real protection to sites like Scribd."

Of course, this isn't the only lawsuit against Scribd. And, it looks like in a different case, Williams v. Scribd, a judge is letting that case move forward. As Eric Goldman notes in the link, the company apparently "ran into a judge who appears to be a stickler about letting unmeritorious cases survive to summary judgment" rather than dismissing them outright. It sounds like the judge may be willing to grant summary judgment in favor of Scribd, but didn't want to dismiss that case outright. And so, we have to wait before getting another ruling showing that the DMCA protects third parties from liability if they respond to DMCA complaints.

We already wrote about the somewhat odd class action lawsuit against Scribd, but it turns out it's even more bizarre than we first thought. That's because not only is the lawsuit complaining about authors works appearing on the site without authorization, but, according to Wired, the lawsuit also claims that Scribd's own filtering system infringes. Yes, the very system that it uses to try to prevent works from being uploaded is being called infringing, because it stores a copy to pattern match against uploads. I can't see how it's infringing in any way whatsoever. It's a tool that isn't used for infringement, but to prevent infringement. Perhaps I'm missing the point on how Scribd's filter works, but most filtering tools work on the principle of someone complaining about the unauthorized work being on the site, thus alerting the service provider of the need to filter. That seems like an authorization. But, more importantly, it's difficult to see how such a filter could be seen as infringing even absent such an authorization.

Copyright law grants five different exclusive rights to the copyright holder: the right to reproduce, to prepare derivative works, to distribute, to perform and to display. A filter doesn't really do any of those things. You could somehow try to interpret "reproducing" in such a way to claim that Scribd does that with its filter, but even that seems like a stretch. The only reason that the work is being reproduced is to stop any distribution or display of the work. No one actually gets to see it.

Still, it's quite a bizarre lawsuit that not only sues Scribd for failing to block an uploaded book, but at the very same time also sues the company -- under the same law -- for trying to block an uploaded book. Hopefully this one gets tossed out quickly.

Well, this is odd. Back in March, some book publishers and authors started blaming Scribd for hosting infringing scanned and uploaded books. Of course, they ignored the fact that Scribd is quite aggressive in taking down any infringing content that it discovers, and has a filtering system to try to catch as much as possible. Under any reasonable reading of the DMCA, Scribd is protected under the safe harbors. It's not doing the actual infringing itself, but providing a tool, and it appears to go above and beyond the legal requirements in trying to help authors and publishers.

Yet, given that noise back in March, you had to know that a lawsuit was brewing, and it's not too surprising to find out that the first one filed is a class action attempt. What is surprising, however, is that the lawyers bringing the case, Joe Sibley and Kiwi Camara, are the same lawyers who represented Jammie Thomas in her recent loss to the record labels. Camara and Sibley, in that case, failed to do some of the most basic things you would have expected in such a defense (though, they were brought on to her defense just before the trial began).

Their argument against Scribd doesn't seem to make much sense at all:

"Under the aegis of self-promoting misinterpretations of federal statutes," the lawyers wrote in their complaint, "the West Coast technology industry has produced a number of start-up 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."

That's simply not true in any sense of what they describe. None of the companies -- Scribd included -- is claiming that infringement is not against the law. They're just saying -- and the law pretty clearly reflects this -- that it is not their liability for infringements done by users. No one is denying the right of the copyright holders to go after those who actually did the uploading. Camara and Sibley seem to be making up a strawman that completely ignores the actual arguments. They continue:

"Apparently (the West Coast start-ups) believe any business may misappropriate and then publish intellectual property, as long as it ceases to use a stolen work when an author complains...Many millions of dollars have been invested in this business plan."

Again, this is simply incorrect. The businesses themselves are not doing the "misappropriating" or the "publishing." That's the entire reason for the safe harbors in the DMCA, to recognize the difference between a tool provider and a user. That these lawyers can't understand the same difference is highly questionable -- especially right after a court set Universal Music straight on the very same issue. People keep acting as if the DMCA safe harbors mean that copyright infringement is somehow not enforced, but that's a plainly wrong understanding of what's happening in the world. The entire point of the safe harbors is to make sure that the correct party is liable. It still amazes me that otherwise intelligent people can't seem to recognize this distinction.

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.

Scribd has come under some totally mistargeted criticism for being a supposed haven of book piracy. The company is clearly protected by DMCA safe harbors, and appears to work extra hard to deal with any infringement found on its platform. Part of that is an automated system that will take down content it believes is infringing. And, as we've seen with automated takedowns on others sites, sometimes it gets a little too aggressive. The folks over at Against Monopoly point out that it took down a copy of Adam Smith's Wealth of Nations, a book most of you would agree is very much in the public domain at this point. To Scribd's credit, the company quickly admitted the error (saying it was a technical error) and corrected it. But, still, it shows the dangers of such automated systems. They certainly don't do a good job dealing with fair use cases, and they often have problems with the public domain as well.

Another weekend goes by and another old school newspaper guy writes a long screed condemning Google as a menace hellbent on destroying all that is good and right in the news business. This one, by Henry Porter in The Guardian is particularly amusing due to the logical inconsistencies within. It starts out, first, with a rehashing of the misguided attack on Scribd, where Porter seems to blame Scribd for actions of its users (who knew it was so difficult to separate out the drivers from the automakers). To him, Scribd is pure evil:

it still allows individuals to advertise services for delivering pirated books by email, which must make it the enemy of every writer and publisher in the world. In effect it has turned copyright law on its head: instead of asking publishers for permission, it requires them to object if and when they become aware of a breach.

Yes, that's why many authors and publishers are using Scribd to help promote their books. Apparently the fact that Scribd might be useful never occurred to Porter. It's the same complaint by plenty of folks who refuse to even think about new business model possibilities, to immediately condemn any useful new service as killing off any hope of a business model even as those willing to embrace the technology are finding it enhances rather than diminishes their opportunities.

Then, right after he complains that Scribd isn't doing enough to prevent books from getting online, he complains about Google for the exact opposite thing:

Google presents a far greater threat to the livelihood of individuals and the future of commercial institutions important to the community.... When the Performing Rights Society demanded more money for music videos streamed from the website, Google reacted by refusing to pay the requested 0.22p per play and took down the videos of the artists concerned.

This is the very next paragraph. So, let me get the logic straight: Scribd is a problem because it allows books to be posted online without permission and doesn't do enough to take them down. Google, on the other hand, is a problem because it has taken down music videos rather than leaving them up and simply paying.

So, apparently, the lesson of the day is that content creators should be able to demand a specific amount of money from any service provider for actions done by their users (not the service provider itself), and if that service provider can't pay up, too bad. Oh, and then, of course, there's the popular claim of the content creator that Google adds no value:

Google is in the final analysis a parasite that creates nothing, merely offering little aggregation, lists and the ordering of information generated by people who have invested their capital, skill and time.

Fair enough. If it adds no real value, then remove your works from Google, Mr. Porter. But, the truth is Mr. Porter is wrong and he knows it deep down inside. If Google "created nothing" and offered no value, no one would use it. But the fact is that it creates tremendous value, hence all of the usage, including some that drives traffic to Mr. Porter's weakly argued, poorly reasoned rant. The fact that Mr. Porter or his bosses are somehow unable to capitalize on that traffic is their fault alone, not Google's.