Court allows copyright suit vs. Scribd.com to proceed

In a little-noticed case in San Diego, a federal court has declined to dismiss a copyright suit against Scribd.com filed by a financial writer whose books were uploaded to the document-storage site without permission. Scribd had moved to dismiss Larry Williams' entire complaint under Rule 12(b)(6), relying chiefly on the DMCA Section 512(c) safe harbor for "storage at the direction of a user." But, as I predicted, the court held that a ruling on the applicability of the safe harbors was not appropriate at the motion-to-dismiss stage, given the inherently fact-specific nature of the inquiry. Indeed, the major rulings on the scope of the Section 512(c) safe harbor -- Io v. Veoh, UMG v. Veoh, and Viacom v. YouTube -- all came in the context of summary judgment, after extensive discovery regarding the defendants' copyright compliance practices.

The court also made significant rulings about the adequacy of the complaint's allegations regarding direct, contributory, and vicarious infringement claims. The court -- which repeatedly criticized the poor quality of the complaint -- held that Williams did not adequately plead direct infringement under CoStar v. LoopNet's requirement of "volitional conduct"; alleging that the uploader was "friends" with Scribd's CEO didn't cut it. The court did, however, hold that Williams' complaint contained sufficient allegations of contributory and vicarious infringement to survive the 12(b)(6) motion.

So now discovery proceeds, and I'm sure a summary judgment motion will follow. Judge Burns' order contains multiple indications that he is likely to grant it.
Order on Motion to Dismiss in Williams v Scribd

No class certification in Scott v. Scribd case

The copyright suit filed by a Texas author against document-storage site Scribd.com will not proceed as a class action. In its order denying Scribd's motion to strike the class allegations, the court gave plaintiff Elaine Scott until May 1 to file her motion for class certification. That deadline has passed without Scott filing such a motion. And her attorney Kiwi Camara confirmed to me that he decided not to pursue a class action in this case. "We're pursuing certification in a different case in a different circuit," Camara told me via email. No word yet on what that "different case" will be.

Meanwhile, in the similar Williams v. Scribd case pending in San Diego, the court has yet to rule on Scribd's motion to dismiss based on, inter alia, the DMCA Section 512(c) safe harbor. The complaint in the Williams case does not include class allegations.

Court refuses to strike class allegations and affirmative defenses in Scott v. Scribd case

In the purported class action copyright lawsuit filed against document-storage site Scribd.com, the court has denied Scribd's motion to strike the class allegations. Judge Melinda Harmon of the Southern District of Texas ruled that the plaintiff, author Elaine Scott, is entitled to take discovery on issues related to Rule 23, and that "a decision should not be made on class certification prior to Plaintiff moving for such."
Order on Motion to Strike Class Allegations

In addition, Judge Harmon denied the plaintiff's motion to strike Scribd's affirmative defenses, ruling that "each asserted defense is stated in sufficiently clear terms to give Scott fair notice" under Rule 8. Bottom line: discovery proceeds.

In Williams v. Scribd, a similar case pending in San Diego, the court has taken under submission Scribd's motion to dismiss based on, inter alia, the DMCA Section 512(c) safe harbor. It seems unlikely to me that the motion to dismiss will succeed, given the highly fact-specific nature of the inquiry into whether a defendant has taken the steps necessary to stay within the safe harbor.

Scribd moves to strike class allegations from copyright suit; warns of potential for 'horrendous, possibly annihilating punishment'

Scribd.com, the document storage site sued for copyright infringement by an author who alleged that her book was uploaded and displayed without her permission, has responded to the complaint, filing an answer and moving to strike the class allegations or, in the alternative, deny class certification.
Motion to Strike Class Allegations in Scott v. Scribd

Scribd's papers make clear that its primary defense will be the safe harbor found at Section 512(c) of the DMCA. It opposes class certification on various grounds, primarily that individual issues of knowledge, copyright registration, and infringement would predominate over questions common to all members of the purported class of copyright owners whose rights are alleged to have been violated by Scribd. Scribd also argues that certification of a class of plaintiffs seeking statutory damages would violate its due process rights, resulting in a "horrendous, possibly annihilating punishment" that could "bankrupt" Scribd for the "inconsequential infringement of one out-of-print book." Interestingly, plaintiff Elaine Scott's counsel Kiwi Camara has made similar arguments in defense of his client Jammie Thomas-Rasset, where a constitutional challenge to the jury's award of $1.92 million for Thomas-Rasset's infringement of 24 songs is fully briefed and awaits a decision by Judge Michael Davis in Minneapolis.

Scribd is represented by Barry Flynn of Gordon & Rees' Houston office.

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.