Scribd's Official Reponse to the Science Fiction and Fantasy Writers Association (SFWA)

September 1, 2007

Dr. Andrew Burt
Vice-President
Science Fiction & Fantasy Writers of America, Inc.

Dear Dr. Burt:

I am an attorney with the Electronic Frontier Foundation (EFF). I write today as legal counsel representing Scribd.com. If SFWA is represented by counsel in connection with the matter discussed below, please let me know so that I may direct future correspondence accordingly.

On August 17, 2007, you sent an email to Scribd.com on behalf of SFWA alleging that numerous items hosted on Scribd.com allegedly infringed the copyrights of authors who you claimed to represent. On August 27, 2007, you confirmed in another email that your earlier communication was intended as a formal notice under the Digital Millennium Copyright Act (DMCA).

We have now heard from no fewer than four authors whose works were improperly targeted by your notice. They confirm that they have never authorized SFWA to act as their DMCA enforcement agent. As a result, it appears that your notice constituted a misrepresentation both of your authority to act on their behalf and that the targeted materials were infringing.

Scribd.com takes its copyright responsibilities seriously and complies in every particular with the requirements of the DMCA. Upon receipt of a compliant DMCA takedown notice, Scribd.com acts to promptly remove any materials uploaded by its users. But Scribd.com does not take lightly your apparently careless invocation of the DMCA to remove content without any valid justification.

I understand and appreciate that SFWA has taken steps to apologize to Scribd.com users whose materials were improperly removed as a result of your notice. This letter is intended to prevent any repetition of these unfortunate events. While we will continue to consider valid DMCA takedown notices sent on behalf of rightsholders who you are authorized to represent, this letter puts you on notice than any further takedown notices that contain misrepresentations may expose you and SFWA to liability (including attorneys fees) pursuant to 17 U.S.C. 512(f). This would include not only notices that misrepresent about your authority to act on behalf of rightsholders, but also any notices that target activities (such as the inclusion of small excerpts of copyrighted material within larger original works) that are plainly noninfringing fair uses. See Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204 (N.D. Cal. 2004) (imposing liability for sending DMCA takedown notices targeting obvious fair uses).[1]

Moreover, none of your recent communications have been in compliance with the requirements of the DMCA. As you should know, the DMCA requires that a takedown notice be in writing and include each of the following pieces of information:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

See 17 U.S.C. 512(c)(3)(A).

Your recent communications conspicuously fail to meet several of these requirements, including the lack of a statement under penalty of perjury that you are acting with the authority of the copyright owner and any identification of the work you allege is being infringed. In addition, the law requires that all of these elements must appear in a single communication, rather than spread across numerous email messages. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007).

You may wish to review the most recent ruling from the Ninth Circuit Court of Appeals on the DMCA, which presciently predicted the harm Scribd.com users appear to have suffered as a result of your noncompliant notices:

In order to substantially comply with 512(c)(3)s requirements, a notification must do more than identify infringing files. The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.

See Perfect 10, Inc. v. CCBill LLC, 488 F.3d at 1112 (emphasis added).

The law clearly entitles Scribd.com to ignore noncompliant DMCA notices entirely. See 17 U.S.C. 512(c)(3)(b)(ii). Consequently, by failing to meet the requirements of the statute, you run the risk that your notices will be rejected in their entirety (including any legitimate allegations of infringement that they may include), an outcome that would be unfortunate for the rightsholders SFWA represents.

We trust that, in light of this incident, any future DMCA notices sent by SFWA shall substantially comply with all the requirements set forth in the statute.

Sincerely,

Fred von Lohmann
Senior Intellectual Property Attorney
fred@eff.org

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