SFWA & e-piracy

I was wrong. I can admit it. I don't like to, but I can and do admit to being wrong.

On occasion.

This time, I was wrong about the SFWA and its efforts to hunt down those abusing copyrights (re: DMCA - Why it reeks of moldy cheese). Apparently, despite the fact that I could find no reference to it on their public website, they do (or did, as it's been disbanded due to this whole fiasco) have a division which deals with protecting the intellectual property rights of authors who give them specific permission to do so. Why those authors would do things the way they do, I don't know, as my thoughts on the matter are more closely related to Mr. Doctorow's thoughts on things than Dr. Burt's.

Truthfully, the ideal solution to me would be every time I purchase a book, I get an electronic copy of that book free. I want to be able to carry my library with me in a succinct portable form like that. I want to be able to easily search for quotes or references while I'm writing reviews or other articles.

But all of that is neither here nor there.

We're talking about SFWA and the case of the magical takedown notices. Sure, I was wrong, and the furor seems to be dying down, but we are getting more information about some of the things that are going on behind the scenes. Additionally, the SFWA is getting more defenders in this issue. Defenders such as Jerry Pournelle and his article on the issue over at Chaos Manor Reviews.

Mr. Pournell's article is relevant here because he actively defends Dr. Burt's actions in this issue. Telling us how wonderful the e-piracy actions of the SFWA are. And from a certain point of view, he is correct. The SFWA, acting as the IP rights manager for some of the documents, was proper and right in requesting SCRIBD to take down those documents.

The problems though are thus:

1. There are certain ways a DMCA takedown notice is required by law to be worded
2. You should only ever send DMCA takedown notices for things which you are certain you contain IP rights for

SFWA's emails to SCRIBD failed in these legal requirements. Sure, SFWA had the legal right to send the email for some of them, but this is a legal issue, some just isn't good enough. Especially, when Dr. Burt is trying to get SCRIBD to put a legal disclaimer on their uploading process.

A move made doubly amusing, because a DMCA takedown notice is a formal legal document, and by indicating SCRIBD had to take down IP works which he wasn't allowed to, Mr. Burt in effect perjured the SFWA. And made even more amusing, when Dr. Burt claims to have looked at each of the files he requested being removed to make sure that he had the legal right to do so.
The final issue from Mr. Pournelle's post is the Electronic Frontier Foundation's (EFF) letter to the SFWA. He kind of bad mouthed both, and in fact had this to say about things:

It was rather intimidating. It was also a surprise: one would have thought that if EFF were going to get in this act, it would have been on behalf of the authors!

The thing is that SCRIBD did nothing wrong in this scenario.

Let's repeat that.

SCRIBD did NOTHING wrong. Nada. Zilch.

Legally, SCRIBD is not responsible for the materials its users upload, provided that they respond to all LEGAL DMCA takedown notices.

SFWA sent illegal DMCA takedown notices. The letter which SCRIBD and the EFF sent to SFWA (posted at SCRIBD's blog here) is merely pointing that out.

I have no doubt that if the SFWA had sent legal DMCA takedown notices and SCRIBD had not complied with them, then the EFF would have sided with the SFWA. Unfortunately, and what Mr. Pournelle seems to not realize, is that the EFF has a tendency to side against any organization or person who sends fraudulent takedown notices.

So, regardless of SFWA's intentions, because it sent takedown notices which did not comply with the legal requirements for a takedown notice AND some of the notices it sent were fraudulent, it seems obvious to me which side of things the EFF would fall (once it got involved).

Sure, SFWA has the right to aggressively protect the intellectual property of those authors who wish for that. What it does not have the right to do is provide improperly formed legal documents, and claim they are legal. It does not have the right to impose on the intellectual property rights of others. These are all defined clearly and succinctly, and with the fraudulent takedown notices - some rather stiff fines, in the DMCA's text.

Ignoring the ethical or moral issues of piracy, ignoring the argument on whether or not free e-books lead to greater sales of physical copies of books, legally, SFWA is the only organization here that has broken the law.

Frankly, I'm still wondering if there's not a monetary issue to this in the way that Dr. Burt worded questions and pitched his algorithm. But I'm something of a cynic.