Class action copyright suit filed against Scribd; is filtering an act of infringement?

In what could be Viacom v. YouTube for print, a Houston financial writer has sued Scribd.com for copyright infringement, purporting to represent a class of authors who allege their works have been illegally copied, re-formatted, and displayed by the popular document-hosting service. As first reported by CNET's Greg Sandoval, the plaintiff, Elaine Scott, is represented by Kiwi Camara, famous in the copyright world for his defense of p2p infringer Jammie Thomas-Rasset.
Scott v. Scribd Complaint
Scott's complaint is in many ways similar to those filed by movie, TV, and music companies against user-generated content web video sites like YouTube and Veoh. But there's an interesting twist, involving Scribd's efforts to prevent copyright infringement. Scribd has implemented its own "Copyright Management System" similar to the Audible Magic filter employed by Veoh and other sites, and YouTube's own proprietary sytem. According to Scribd:

Every document uploaded to Scribd is compared to the CMS database. If someone tries to upload a document that our system identifies as one of the tens of thousands of works in our CMS database (with more added daily), that document is automatically removed from Scribd.

There are two ways the documents get into the CMS database. First,

Each time Scribd receives a DMCA-compliant takedown request from a copyright holder, we quickly remove the unauthorized document and add a unique reference file corresponding to that document to our copyright database, deleting previously-uploaded copies of the same work identified by the system.

Or copyright owners can pre-emptively give Scribd a copy of their works to add to the database:

Automated future protection: We also urge authors and publishers to proactively add the text of their work to the Scribd CMS. Click here to upload your original works to the copyright management system.

Sounds pretty good, no? According to Scott's complaint, no! In fact, the complaint specifically cites the operation of the CMS as an act of infringement:

Without permission of the authors, Scribd maintains copies of author's [sic] works for use in a copyright protection system. Once a copyrighted work is uploaded to Scribd without the copyright holder's permission, the infringement is ongoing and permanent. Even if the work becomes unavailable for download by users, Scribd illegally copies the work into its copyright protection system, without permission or compensation to the author.

In other words, asserts the complaint, making and retaining copies of infringing works in order to remove them from the system, and prevent future uploads, is itself infringing. One question I have is whether what Scribd maintains in its database are actual "copies" of the infringing materials, or merely (as in the case of the audio and video ID systems I'm aware of) digital "fingerprints" of the materials. The distinction may sound technical, but it could determine whether Scribd's CMS is itself infringing.

The complaint colorfully attacks the "West coast technology industry" that has "produced a number of startup firms premised on the notion that commercial copyright infringement is not illegal unless and until the injured party discovers and complains of the infringing activity and the infringer fails to repond to such complaints," and heaps scorn on "previous cases decided in the Ninth Circuit" which "do[] not reflect Fifth Circuit law and good policy." It asserts claims for direct, contributory, and vicarious copyright infringement, and seeks a declaration (probably superfluous) that Scribd is not protected by the DMCA's safe-harbor provisions.

There is already one similar suit pending against Scribd (though not a class action), filed August 25 by a San Diego financial writer named Larry Williams. Williams has also sued the individuals who apparently uploaded his works, though he now knows them only by his Scribd user IDs. (Williams will likely be able to out them either through discovery in his case, or via subpoenas under 17 USC § 512(h).) Of course, even if the DMCA Section 512(c) safe harbor shields Scribd from infringement claims, it definitely does not protect individuals who upload material without the permission of the copyright owner.

Disclosure: I use Scribd to host documents for this blog. A lot.