Class Action Copyright Suit Filed Against Scribd... By Jammie Thomas' Lawyers?

from the say-what-now? dept

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.

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  • icon
    deadzone (profile), 21 Sep 2009 @ 8:48am


    I guess none of these people truly understand copyrights and how they tie in with the concept of "Safe Harbors". I can't say that I am not surprised by this one.

    reply to this | link to this | view in chronology ]

  • identicon
    Scote, 21 Sep 2009 @ 9:05am

    "I guess none of these people truly understand copyrights and how they tie in with the concept of "Safe Harbors". I can't say that I am not surprised by this one."

    No, I bet the lawyers fully understand copyrights and safe harbors. Both Joe Sibley and Kiwi Camara are smart and know copyright law. But lawyers are paid by the hour to *advocate* for their client, even if they don't have a very good case. Lawyers can be amoral, siding with whomever pays them--though I had thought that Sibley and Camara were on the side of reasonable implementation of copyright law, but I guess the decided they needed to make some quick cash to make up for their disastrous pro-bono work for Thomas. Anyway, with lawsuits, their are lots of ways to "win," including getting lucky with a pro-corporate judge, an affronted jury, or just grinding your opponent into the ground through perseverance. Just look at SCO. That company should have died years ago, but it's emaciated corpse is still suing people.

    reply to this | link to this | view in chronology ]

  • icon
    mjb5406 (profile), 21 Sep 2009 @ 9:07am

    Next 15 Minutes of Fame

    Well, after the Jammie Thomas debacle, these shyster attorneys need something "sensational" to keep them in the public eye, so here you go.

    Wait... can they now sue Techdirt for "allowing" me to call them sbysters?

    reply to this | link to this | view in chronology ]

  • icon
    eclecticdave (profile), 21 Sep 2009 @ 9:33am

    Active Policing

    This could be an interesting case from the POV of recent worrying court judgements which seem to be suggesting that safe harbors only apply if you take a hands-off approach to managing a website and you could be liable if you actively remove infringing material over and above takedown requests.

    This clearly makes little sense since it effectively encourages website owners to do nothing to police their sites. One possible useful outcome of this case is if it ended up setting a more sensible precedent.

    reply to this | link to this | view in chronology ]

  • icon
    Rosedale (profile), 21 Sep 2009 @ 9:42am

    This is a good thing. Inept Lawyers

    Given how inept they were with the RIAA trial this is probably a good thing. They'll stink up the court room for a bit, lose, and go home. Than we can get some good case law on the issue.

    reply to this | link to this | view in chronology ]

  • icon
    Designerfx (profile), 21 Sep 2009 @ 10:05am

    jammie thomas screwed by lawyers

    it sure looks that way now, doesn't it?

    I can't believe people didn't realize that, that the pro bono lawyers that helped jammie were not good at all.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Sep 2009 @ 11:06am

    ".... It's not doing the actual infringing itself, but providing a tool....".

    Of course we know your always right, but it's amusing to note that the Joe public still thinks courts get to decide that stuff. They might also have the silly idea that providing a tool for infringing could also be offensive - LoL.

    reply to this | link to this | view in chronology ]

  • icon
    Raybone (profile), 21 Sep 2009 @ 2:10pm

    could it be a payoff? let me see if I understand...Lawyers lose a case vs IP Cabal and next they turn up working for some IP Cabal?

    Big Content: "Listen, all you need to do is screw this Thomas case up real good for us and you will be rewarded handsomely.

    Jamie's Lawyers: "No problem, just remember us when your next big case comes up"

    Business as usual in the Corporate States of America?

    reply to this | link to this | view in chronology ]

  • identicon
    Rabbit80, 21 Sep 2009 @ 3:24pm

    A hidden agenda perhaps?

    Could this be some kind of precedent setting case (in losing) that will help other cases of theirs?

    reply to this | link to this | view in chronology ]

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