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Scribd File-Hosting Plaintiff To Cut Off Nose, Spite Face

October 1, 2009

In an astounding “What the?!?!” lawsuit, document sharing site Scribd is being sued for copyright infringement.  On its face, most people will figure that this is your run of the mill, file hosting service lawsuit.  However, as we’ve seen several times before, the Safe Harbor provisions of the Digital Millennium Copyright Act protect file hosts from infringement suits if they comply with take-down notices sent by the copyright owners.

This case presents a couple of twists.  First, the plaintiff copyright owner is represented by Camara & Sibley LLP.  For those keeping score at home, this is the same firm who represented Jammie Thomas in her infamous battle with the RIAA over file sharing (and is currently representing her in her appeal).  C&S also represents Psystar in its battle with Apple.  If nothing else, these guys have proven that they have no ideological loyalties and will swing both ways when it comes to digital copyright issues.  Unfortunately for them, it appears they’re never facing the mound when they step up to the plate.

The real head-turner in the Scribd case, however, is the basis for liability.  Elaine Scott, the plaintiff and author of the 1985 cliffhanger Stocks and Bonds, is arguing that Scribd is making illegal copies.  She’s not complaining of ephemeral copies made in the process of displaying the documents on screens.  She also only incidentally seems to suggest liability as a result of users downloading the files.  While she tosses in an impotent “making available” type of argument, it will likely get tossed back out in light of recent precedent (not to mention the very plain language of the statute).

The meat of Ms. Scott’s complaint concerns the fact that Scribd made a copy of her work to keep on file to identify future copies of her work and prevent those from being illegally uploaded.  Scribd’s sole use is as a part of its content filtering system.  According to the complaint, “the copyright protection system is built and maintained without compensation to the authors of the works that provide the only real value for the copyright filter.”

Let me get this straight.  Ms. Scott is mad because Scribd is trying to prevent future infringements of her work?  And she alleges that Scribd’s system only has value because of the copyrights it identifies?  Sure, the copyright protection system has value and that value is attributable to copyright owners.  However, copyright owners are also the sole beneficiaries of that copyright system!  If there were no copyrights then there would be no need for a copyright filtering system.

Scribd is by all accounts protected under the DMCA Safe Harbor from liability for copyright infringement, so a service such as theirs has no duty to proactively monitor the content that is uploaded by users.  If someone uploads infringing content, they have no legal obligations to the copyright owner unless and until that owner sends a take-down notice.  At that point Scribd only has to remove access to the content.  However, Scribd is going a step beyond and is acting proactively to prevent copying in the first place, taking the burden away from the copyright owner to patrol every file-sharing service on the interwebs.  Hello, Ms. Scott?  You are suing a service for infringement when it is doing something to help you prevent infringement.

We could, of course, go through the whole analysis of fair use in order to arrive at the conclusion that Scribd should be allowed to make these copies for its filtering system.  However, only one facet of the analysis really needs to be considered, which is the impact on the potential market for the copyrighted work.

Never in the history of infringement cases has the allegedly infringing conduct so directly and harmlessly benefited the author’s potential market.  Scribd’s copy is a single copy and it’s not like Mr. Scribd is taking it home to read it by the fire; Ms. Scott hasn’t lost even one sale.  Rather, Scribd’s one copy will be used to prevent additional uploads of Ms. Scott’s beloved book, and countless more downloads.  Thus, her market of 10 sales a year remains safely intact.

If there were a Darwin award for lawsuits, I think this one would qualify.  Unfortunately, it will probably be allowed to proceed only because it raises novel questions in an evolving area of law.  The judge will feel compelled to allow some discovery to occur and perhaps even let it go to trial so that others will not travel down this silly path.

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