Science Fiction Writers of America abuses the DMCA

The Science Fiction and Fantasy Writers of America has used the Digital Millennium Copyright Act to fraudulently remove numerous non-infringing works from Scribd, a site that allows the general public to share text files with one another in much the same way that Flickr allows its users to share pictures.

Included in the takedown were: a junior high teacher's bibliography of works that will excite children about reading sf, the back-catalog of a magazine called Ray Gun Revival, books by other authors who have never authorized SFWA to act on their behalf, such as Bruce Sterling, and my own Creative Commons-licensed novel, "Down and Out in the Magic Kingdom."

The list of works to be removed was sent by "epiracy@sfwa.org" on August 17, described as works by Isaac Asimov and Robert Silverberg that had been uploaded without permission and were infringing on copyright. In a followup email on August 23, SFWA Vice President Andrew Burt noted that the August 17 list wasn't "idle musing, but a DMCA notice."

The 1998 Digital Millennium Copyright Act allows copyright holders to use "notices" to force ISPs to remove material from the Internet on a mere say-so. In the real world, you couldn't get a book taken out of a bookstore or an article removed from the newspaper without going to court and presenting evidence of infringement to a judge, but the DMCA only requires that you promise that the work you're complaining about infringes, and ISPs have to remove the material or face liability for hosting it.

As a result of SFWA's takedown notice, hundreds of works were taken offline -- including several that had not been written by Asimov or Silverberg. It appears that the list was compiled by searching out every single file that contained the word "Asimov" or "Silverberg" and assuming that these files necessarily infringed on Silverberg and Asimov's copyrights.

This implies that Robert Silverberg and the Asimov estate have asked SFWA to police their copyrights for them, but it's important to note that many of the other authors whose work was listed in the August 17 email did not nominate SFWA to represent them. Indeed, I have told Vice President Burt on multiple occasions that he may not represent me as a rightsholder in negotiations with Amazon, and other electronic publishing venues.

More importantly, many of the works that were listed in the takedown were written by the people who'd posted them to Scribd -- these people have been maligned and harmed by SFWA, who have accused them of being copyright violators and have caused their material to be taken offline. These people made the mistake of talking about and promoting science fiction -- by compiling a bibliography of good works to turn kids onto science fiction, by writing critical or personal essays that quoted science fiction novels, or by discussing science fiction. SFWA -- whose business is to promote science fiction reading -- has turned readers into collateral damage in a campaign to make Scribd change its upload procedures.

Specifically, in the Aug 23 email, SFWA Vice President Andrew Burt demands that Scribd require its uploaders to swear on pain of perjury that the works they are uploading do not infringe copyright. SFWA has taken it upon itself to require legal oaths of people who want to publish any kind of thought, document, letter, jeremiad, story or rant on Scribd. Not just "pirates." Not just people writing about science fiction, or posting material by SFWA members -- SFWA is asking that anyone writing anything for publication on Scribd take this oath of SFWA's devising.

Ironically, by sending a DMCA notice to Scribd, SFWA has perjured itself by swearing that every work on that list infringed a copyright that it represented.

Since this is not the case, SFWA has exposed itself to tremendous legal liability. The DMCA grants copyright holders the power to demand the removal of works without showing any evidence that these works infringe copyright, a right that can amount to de facto censorship when exercised without due care or with malice. The courts have begun to recognize this, and there's a burgeoning body of precedent for large judgements against careless, malicious or fraudulent DMCA notices -- for example, Diebold was ordered to pay $150,000 125,000 for abusing the DMCA takedown process.

I am a former Director of SFWA, and can recall many instances in which concern over legal liability for the organization swayed our decision-making process. By sending out this indiscriminate dragnet, SFWA has been exposed to potential lawsuits from all the authors whose works they do not represent, from the Scribd users whose original works were taken offline, and from Scribd itself.

In addition to the legal risks, SFWA's actions have exposed it and its members to professional risk. For example, the page that used to host my book, Down and Out in the Magic Kingdom now reads, "The document 'Down and Out in the Magic Kingdom' has been removed from Scribd. This content has been removed at the request of copyright agent Science Fiction and Fantasy Writers of America." Down and Out in the Magic Kingdom was the first novel released under a Creative Commons license, and I've spent the past four years exhorting fans to copy my work and share it. Now I've started to hear from readers who've seen this notice and concluded that I am a hypocrite who uses SFWA to send out legal threats to people who heeded my exhortation.

In discussing this with my agent, Russell Galen, I was made aware of another potential problem: Scribd does end up hosting infringing works (just like Flickr, Blogger, LiveJournal and any other site that lets users upload their own files) that writers and their agents can remove by sending in legitimate DMCA notices (Russ tells me that he's sent Scribd notices on behalf of the Philip K Dick estate, another of his clients). When SFWA begins to muddy the waters by asserting that the organization is its members' representative for copyright, they make it harder for actual copyright enforcement agents to do their job -- how much harder will it be for Russ to convince Scribd that he is Dick's representative now that they've been burned by SFWA?

There's no excuse for this. Even a naive Internet user should be able to understand that if you compile a list of every file online that has the word "Asimov" in it, you'll get a lot of works that weren't written by Isaac Asimov included in the search results. In the case of Down and Out in the Magic Kingdom, the file included a blurb from Gardner Dozois, former longtime editor of Asimov's Science Fiction Magazine -- and it was that "Asimov" in "Asimov's Science Fiction Magazine" that triggered the takedown.

Even a naive user should know better -- and SFWA Vice President Andrew Burt (who got his position through an uncontested ballot) is a computer scientist and programmer with experience in this field. Indeed, he previously created a system called "Shades of Grey" that is supposed to ruin the ebook downloading experience by poisoning the Internet with corrupted copies of ebooks. He convinced SFWA to appropriate funds from its operating capital to patent this idea, on the basis that publishers would pay SFWA to use it to make science fiction ebooks less attractive to readers (I don't understand the logic of this either). During the last SFWA election, he promised to pay this money back.

SFWA's copyright campaigns have been increasingly troublesome. In recent years, they've created a snitch line where they encourage sf lovers to fink on each other for copying books, created a loyalty oath for members in the guise of a "code of conduct" in which we are supposed to pledge to "not plagiarize, pirate, or otherwise infringe intellectual property rights (copyright, patent, and trademark) or encourage others to do so." What business SFWA has in telling its members how to think about, say, pharmaceutical patents, database copyrights, or trademark reform is beyond me. In 2005, SFWA sent out a push-poll to its members trying to scare members off of giving permission to Amazon to make the full text of their books searchable online.

All of this is pretty bad, but this month's campaign against Scribd takes the cake. I'm a dues-paying SFWA member and past volunteer who relies on the free distribution of my books to sell printed books and earn my living. By fraudulently removing my works from Scribd, SFWA is taking money out of my pocket -- it's the online equivalent of sending fake legal threats to bookstores demanding that they take my books off their shelves.

Update: SFWA President Michael Capobianco writes,

Dear Cory,

I want to personally apologize for the mistake that caused your work to be pulled from scribd.com. It should not have happened and it will not happen again.

I've asked Andrew Burt to notify scribd.com of this mistake so your work can be restored as quickly as possible.

I want to respond to the flurry of activity that has resulted from Science Fiction and Fantasy Writers of America (SFWA) mistakenly identifying several works as infringing copyright. First, some background. There have been discussions within SFWA for several months regarding websites that allow users to upload documents of all sorts for other users to download and share. Many hundreds of copyrighted texts have been put online at these sites, and the number is growing quickly. Some SFWA members complained about the pirating of their works to SFWA's e-Piracy Committee and authorized the committee to do something about it. SFWA contacted scribd.com, one of these sites, about removing these authors' works and generated a list of infringing works to be removed.

Unfortunately, this list was flawed and the results were not checked. At least three works tagged as copyright infringements were nothing of the sort. I have personally apologized to the writers and editors of those works. If you are a creator who has had material removed and has not yet been contacted, please email me at president@sfwa.org.

SFWA's intention was to remove from scribd.com only works copyrighted by SFWA members who had authorized SFWA to act on their behalf. This kind of error will not happen again.

Michael Capobianco
President, SFWA