Scribd Lawsuit Even More Bizarre: It's The Filter That Infringes?

from the good-luck-on-that-idea dept

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.

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Companies: scribd

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Comments on “Scribd Lawsuit Even More Bizarre: It's The Filter That Infringes?”

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19 Comments
Anonymous Coward says:

Copyright Holder: “You have to make sure our copyrighted material doesn’t get on your site.”
Site Owner: “Okay, if you want something removed, I’ll remove it.”
Copyright Holder: “No, you have to make sure it doesn’t get on at all.”
Site Owner: “Okay, we’ll keep a copy so that if someone attempts to upload it again we’ll be able to block it.”
Copyright Holder: “You can’t keep a copy.”
Site Owner: “Okay we’ll just keep a hash of it.”
Copyright Holder: “No, a hash could be used to identify it like those evil bittorrent users.”
Site Owner: “Okay we’ll just block everything.”
Copyright Holder: “And you need to pay us.”

Rasmus says:

A win-win business proposition...

Its quite simple isn’t it?

1. Scribd should of course pay for each copyrighted work that gets uploaded with an amount that covers the POTENTIAL damage to the copyright holders future income. Based on the current amounts awarded by courts for such damages it could become a HUGE amount of money.

2. And to avoid to have to pay such a huge amount of money Scribd should of course license a FILTER RIGHT for each copyrighted work it wants to automatically block. And because the copyrighted work is now part of the source code for the automated filtering software the license fee should be calculated based on the number of processors the filtering software is running on and also the total number of users using the Scribd service during the timeperiod the work is part of the filter. Of course there is one license fee for each copyrighted work added to the filter. The total license fee for FILTER RIGHTS will of course be HUGE.

A really solid win-win situation for the copyright holders.

Anonymous Coward says:

Re: A win-win business proposition...

Seems like the copyrighted work isn’t part of the source code, just data processed by the source code.

Nonetheless, I expect that the lawyers will argue that the filtering process resulting from the code operating on that data constitutes a “derivative work.”

Didn’t say it made sense – just that I expect they’ll argue something like this.

Anonymous Coward says:

Re: Re: A win-win business proposition...

If you even read a copyrighted work everything you do is potentially a derivative work and hence you are violating copyright law no matter what. If you read a programming book and use what you learn from that book in your programs then your programs are derivative works and you’re violating copyright law.

Avatar28 (profile) says:

Google, Microsoft, Yahoo, et all need to weigh in on this

If keeping a copy of the work for the filter is found to be infringing then all of the search engines are going completely screwed. Every last one of them keeps a copy of everything they find on their servers. Not only that, but they actually make that content available to ANYONE upon request. If Google, MS, etc are smart, they will weigh in on the side of Scribd with amicus briefs; ESPECIALLY Google, what with the implications a finding against Scribd would have for YouTube.

That being said, I would be surprised if this gets anywhere. As the story noted, they would appear to be pretty clearly protected by safe harbor provisions.

Anonymous Coward says:

Understand that an attorney representing a client will typically file a laundry list of claims, some strong and some weak. In this instance it appears as if the claim at issue is rather on the weak side and will likely not be viewed with favor by the court.

In all candor, I know precious few attorneys steeped in copyright law who would give such a claim even a passing thought. A laundry list as presented here draws attention away from claims that may have some modicum of merit.

Equally troubling is the attempt to pursue a class action, the type of cases upon which the lawfirm bases its practice. Add to this the absence of any comprehensive knowledge by the members of that firm with substantive copyright law, and what I unfortunately forsee is an accident waiting to happen.

Quite frankly, based upon this firm’s handling of the Thomas-Rassert case and the complaint filed in this case, I have to wonder if there are members of the copyright bar who look forward to this firm representing adverse parties. It is beginning to look as if this may be the case.

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