from the before-the-DMCA,-did-people-just-break-into-libraries-and-steal-microfiche? dept
Update: An Autharium representative reached out to the Passive Voice blog to admit that sending a DMCA takedown was a "mistake". It's not clear whether this means that it was done in error, or that they've acknowledged their attempted abuse of the system.
The DMCA notice: the multi-tool abused by many. The most common abusive form is the issuance of takedowns to muffle criticism, which is what we have here.
Autharium, a British ebook self-publishing platform, took a bit of a beating last March for its absolutely horrendous Terms and Conditions. Passive Voice, a writer-oriented blog, was the first to expose just how much authors were giving up when they signed with Autharium. In exchange for publishing through Autharium, authors gave the platform exclusive WORLDWIDE rights to "produce, publish, promote, market and sell your Work in any Digital Form" for "the entire legal term of copyright." That's life plus 70 years in the UK.
If an author somehow managed to talk Autharium into reverting the copyright back to him or her, Autharium still retained exclusive, worldwide digital distribution rights. And "any Digital Form" included far more than just ebooks. Paragraph 1.4 of the publishing T&C originally listed the following as being under Autharium's exclusive control.
“Digital Form” means any and all electronic and/or digital forms and media whether now known or later invented or developed including (by way of examples only): (i) any e-book (i.e. using any means of manufacture, distribution or transmission whether now known or later developed including but not limited to electronic and machine-readable media and online and satellite based transmission intended to make your Work available for reading) (“eBook”); and (ii) any electronic version (other than an eBook) for performance and display (whether sequentially or not) in any manner (together with accompanying sounds, images, interactive and/or search features if any) by any electronic means, method or device (“Electronic Version”).Word quickly spread around the web to other author/ebook-oriented sites like Writer Beware and The Digital Reader. The consensus was that this contract was even more exploitative than those offered by other infamous self-publishing platforms/vanity presses like Author Solutions.
Shortly after this uproar, Autharium wisely changed its T&C to something much more author-friendly, including giving their clients the option to terminate the contract and revert rights after three years. It also significantly narrowed its definition of "any Digital Form" by adding this sentence to the paragraph:
For avoidance of doubt this does not include physical or audio book forms, videos, film, television, merchandise or game forms.As it noted on top of the "new" T&C page, this was overhauled in March of 2013, an effort which stripped away almost everything ridiculous and exploitative about the original. This massive restructuring allowed Autharium to add the following line to its "About" page, something it couldn't honestly have said at any point before the March 2013 revamp. (The wording isn't present in previous versions.)
No draconian length of copyright contracts, no signing away of movie, merchandising or physical book rights.So far, so good. While it's a shame Autharium felt the original T&C was somehow acceptable, it did at least respond quickly to the criticism by making extensive changes. If only Autharium had left it at that.
For no discernible reason, nearly a year after the fracas (and Autharium's ensuing corrective efforts), Autharium issued a DMCA notice targeting Passive Voice's original blog post. (h/t to Techdirt reader BS Simon)
Dear Sir or Madam:While it could technically be argued that the "copyrighted text" was "taken" without permission, what was actually included in Passive Voice's post was five paragraphs out of 83 total. And it was clearly used as part of the commentary. It's very difficult to explain what's wrong with a contract's Terms & Conditions without quoting it directly, as was done here. Furthermore, there's nothing in the site's Terms & Conditions that forbids use of the site's text in this fashion.
The content on the URL below infringes copyrighted text taken from our site without permission…
We hereby request that you immediately remove or block access to the infringing material, as specified in the DMCA.
Original work URL(s):
Allegedly infringing URLs:
This has every appearance of a company -- which originally did the right thing and fixed its horrendous contractual text -- attempting to whitewash the past, starting with the blog post that triggered the backlash. But why? Why do this when you've already addressed the problematic T&C and have started to win writers back?
The sad thing about the clearly bogus DMCA notice is that it worked. Passive Voice's post on Autharium's original T&C was originally on the first page of Google's search results. It's now been delisted, as noted by the message at the bottom of the page.
Passive Voice isn't just going to let Autharium pretend March 2013 never happened.
In the opinion of many, including PG [Passive Guy, blogger at Passive Voice], the legal remedies for bad faith takedown notices that are simply attempts at censorship are inadequate. For a further discussion of this problem, see this post on the WordPress Blog.And sunlight Autharium will receive. Instead of simply acknowledging that it had screwed up in the past, Autharium is trying to bury it. It changed its T&C for the better, but is now undoing any forward momentum by attempting to erase the past. This will only result in another round of negative press, and a company that used to look exploitative will now become a company that is currently censorious.
PG thinks an alternate remedy – sunlight – might work the best in this case.
Here is PG’s original commentary on the Autharium language without the inclusion of any language from the Autharium terms of service. PG is including his commentary so his opinions about what he believed to be unfair contract terms as they existed on March 10, 2013, will show up on Google.
Fortunately, The Passive Voice has a large enough audience so Google incorporates new posts into its search database very quickly.