stop. start. stutter.

Watching the current SFWA debacle has been painful -- on every side. I've said for years that copyright is the most misunderstood concept on the internet; the sheer amount of misinformation is stunning.

I don't think that it's much of a surprise to anyone that I come down pretty firmly in the "pixel-stained technopeasant wretch" camp. (Since, you know, you're reading this right now, and if I were one bit less besieged by problems with the primary manuscript, you'd have more regular fiction to read here.) I know that there's a pretty sharp schism in the SFWA about electronic distribution channels -- even as an outsider, the fight's vicious enough to be visible from the ramparts, as it were, and I know enough people who are on the inside to know that it's even more vicious than it appears.

It's also, I know, not as simple as a case of "us" vs. "them", no matter what side you fall down on -- and I know enough to know that I do not want to get involved in the fight, no way no how. I have very, very firm opinions on copyright, digital rights management, and intellectual property laws -- in the way that only someone who's been enforcing those laws for the past five years, even (especially!) when I don't agree with them, can have. Whether we like it or not, though, the laws are the laws. And even the alternative-copyright "copyleft" movements, like the Creative Commons license and the GPL, take their legal protections and basis from existing copyright law; without the framework of existing IP law, you don't get copyleft any more than you can have copyright.

I'm making this post not to come down on any side or get my opinion out there, but to explain a little bit about the DMCA process that any online service provider will follow. (For those of us who are just tuning in, I spent five years on the abuse desk of a major blog service. I've seen a lot of DMCA notices.)

The thing that kicked off this whole brouhaha was a (badly-formatted) DMCA takedown notice. I've seen a lot of people in comments to Patrick Nielsen Hayden's post or Cory Doctorow's post, saying that it's ridiculous for Scribd to require takedowns to name each individual infringing work, and that a blanket notification should suffice. That is, unfortunately, not what 17 USC 512(c)(3)(A)(iii) says:

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.

As someone who's seen one (1) metric fuckton of DMCA takedown notices, trust me: a direct link to the URL of the allegedly-infringing material is pretty much the only way to be sure that you've gotten absolute identification. Every online service provider on the internet is going to require that. (The lawyers in my audience may be tempted at this point to point out ALS Scan, Inc. v. Remarq Communities, Inc. We argue about that one a lot. Nobody's got a clear consensus yet.)

I've seen a lot of DMCA takedown notices from everyone from the RIAA to major publishing houses to individuals. I've also seen people flip out when you tell them that their takedown notice doesn't conform to the standards set forth by law, and I've seen a lot of people say that they don't want to go through all the legal mess, so why can't you just take it down without having to do that? (I've seen a lot of people in the comments to various places championing this option; sort of a "gentleman's agreement" sort of thing, as it were.)

The law doesn't work like that, either. The DMCA requires that an online service provider must have "actual knowledge" of infringing activity before action must be taken (and the OSP's immunity from liability kicks in). And the filing of a properly-formatted (ie, conforming to all six points of the law) DMCA takedown notice is what constitutes "actual knowledge".

The good news is, it's really easy to write a DMCA takedown notice if your copyright is being infringed. (The other good news is that it's awfully easy to write a DMCA counter-notification if you're falsely accused of copyright infringement.) You don't need to pay a lawyer to draft it for you, although as always, I am not a lawyer and this is not legal advice; if you have legal questions, contact a lawyer who's licensed to practice in your jurisdiction.

If your work is being infringed upon by someone on a commercial website, first go to the US Copyright Directory of Service Provider Agents. If you don't find the service listed there, check the site for a copyright statement. If that doesn't pan out, see if you can find out who hosts the site in question. (If I've lost you at this point, find a sympathetic geek and say the words "upstream provider". Your geek will nod knowingly and take care of it for you.)

Here's a sample DMCA takedown notice, which can be adapted by anyone who needs it:

========== BEGIN SAMPLE DMCA TAKEDOWN NOTICE ==========

Dear [name of copyright agent],

Pursuant to 17 USC 512(c)(3)(A), this communication serves as a statement that:

(1). I am [the exclusive rights holder | the duly authorized representative of the exclusive rights holder] for [title of copyrighted material being infringed upon, along with any identifying material such as ISBNs, publication dates, etc -- or, if the material is a web page, the URL];

(2). These exclusive rights are being violated by material available upon your site at the following URL(s): [URLs of infringing material];

(3) I have a good faith belief that the use of this material in such a fashion is not authorized by the copyright holder, the copyright holder's agent, or the law;

(4) Under penalty of perjury in a United States court of law, I state that the information contained in this notification is accurate, and that I am authorized to act on the behalf of the exclusive rights holder for the material in question;

(5) I may be contacted by the following methods: [physical address, telephone number, and email address];

I hereby request that you remove or disable access to this material as it appears on your service in as expedient a fashion as possible. Thank you for your kind cooperation.

Regards,
[your full legal name]
(Digitally signed)

========== END SAMPLE DMCA TAKEDOWN NOTICE ==========

It's not the best sample letter in the universe, and I'm sure your lawyer could draft a better one, but it's substantially compliant with 17 USC 512(c)(3)(A), and an online service provider can't ignore it.

Now, if you get a notice from your online service provider that you're violating someone's copyright, and you don't think you are (or if you are using someone else's material, but think that your use of the material is fair use), you might want to contact a lawyer, because by filing a counternotification, you're opening yourself up for civil and possibly criminal penalties if the person who filed the notification wants to sue you. (However, I can tell you that in five years of handling notification and counter-notification, we never once got notice that a use went to court.)

Filing counter-notification basically says "hey yo, I'm not infringing on this person's copyright; bring it on." The OSP is required by law to forward your counter-notification to the original notifier, and also required to remove the contested material for "not less than 10, nor more than 14, business days". (Most places, in my experience, just go with a straight 14 days.) Once counter-notification is filed, an OSP is out of the picture; it's between the notifier and the notifyee.

Chilling Effects has provided a Counter-Notification Generator, to save me the trouble of having to write one.

A lot of the shitstorm surrounding the current SFWA argument stems around the notion that filing a DMCA notification is a huge and arcane task. It's really not. Most OSPs will receive dozens, if not hundreds, of DMCA notifications in a week. It's all very simple and straightforward, and the reason for that is that most OSPs really don't give a shit who's "right" and who's "wrong" in any particular conflict. They just want to do what the law requires; most OSPs recognize and sympathize with the line between protecting rights-holders and encouraging free expression. And if you speak to them in the right language, they'll basically get the hell out of your way -- but if you speak to them in the wrong language, you waste everyone's time and frustration, including your own.

I hope the SFWA's lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I'm also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further -- and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted -- whether that control is a more traditional "nobody gets to use this, period" or a Creative Commons-style authorization of transformative work.

What saddens me are all the people who are speaking out against Scribd for not being more proactive in this case, including many of the commenters in Scribd's blog response. An online service provider can't be more proactive in matters regarding copyright violation; if they are, they lose some of the protections written into the DMCA for immunity from liability.

Yes, they're going to require that you file a DMCA notice of infringement for every instance of copyright violation on their service -- because by doing so, you initiate the process that's laid out in the law, and everyone involved, including you, have a number of protections as set forth in that law. (And everyone I know right now is terrified of the implications of Fair Housing Council v. Roommates.com, which sets a fucking awful precedent about CDA Section 230 immunity for OSPs -- and which came out of the 9th circuit court. When the 9th goddamn circuit court makes a decision like that, everyone gets nervous.)

I hate the DMCA. I hate it a lot. Most people I know who work for online service providers hate the DMCA too, with a passion that's usually reserved for Teletubbies and Fox News. However, despite how much I hate it, despite how fucking annoying it really is, there are certain narrow subsets of instances where even the second-worst copyright law ever passed can be useful -- and one of those useful cases is the immunity it affords OSPs, because without it, we probably wouldn't have an internet anymore.

So, basically, when you get a response from an online service provider that says, hey, we can't help you unless you jump through these hoops, please don't get upset or angry. The person on the other end of the screen probably agrees with you that the hoop-jumping sucks. But really, it's for everyone's benefit -- including the benefit of the rights-holder.