There's a website out there that presents itself as the textual equivalent of Flickr-- that is, users can upload any kind of text document, and the site provides public access to all these documents.
But unlike Flickr, it's pretty obvious that the primary attraction of this site in practical terms is that it's full of copyrighted documents, and the operators apparently don't much care. Much of the content there isn't pirated, but it's still a pirate site as far as I'm concerned, and so I won't name the site here.
SFWA, the Science Fiction and Fantasy Writers of America, is probably a little more in touch with the risks and benefits of electronic publishing than other writer's organizations. SFWA has a committee for dealing with electronic piracy (here) chaired by Andrew Burt, who is also a writer, computer scientist, and the founder of Nyx.net, said to be the world's first free public-access Internet service provider.
Burt and others tried to get the operators of this pirate site to bring the piracy under control, but apparently the site operators were not cooperative.
On August 17, Burt sent a site operator a list of several hundred documents on the site, alleging that these documents were the copyrighted intellectual property of two specific science-fiction writers-- Isaac Asimov and Robert Silverberg. According to Burt, the SFWA had been authorized by Silverberg and the Asimov estate to pursue copyright violations on their behalf.
There was a problem with the list: not everything on it was actually an Asimov or Silverberg story.
The site did not remove any of the listed documents, and on August 23, Burt sent another message describing the list as "(not) idle musing, but a DMCA notice."
There was a problem here too: neither email met the legal duties or structural requirements for a DMCA takedown notice (which are described in more detail on Wikipedia).
But the site nevertheless took down all of the listed documents... including the ones that had been legally published.
And then the fecal matter hit the ventilation device, because one of those legally published documents was a story by Cory Doctorow.
On August 30, Doctorow posted a blog entry on Boing Boing titled "Science Fiction Writers of America abuses the DMCA." Other individuals who had been falsely accused of copyright violations had blogged about it in the previous week, but it was Doctorow's post that attracted the most attention in the blogosphere.
In his post, Doctorow focused exclusively on the legally published documents, ignoring the fact that the vast majority of documents listed by Burt really were copyright violations.
Now, Doctorow has the right to say anything he likes, but he did his readers a serious disservice by failing to present the full truth. In particular, Doctorow certainly did not also post a blog entry titled "Website features thousands of pirated documents" or anything like that. From reading his post, one might suppose that this site is an innocent victim instead of one that had ignored many previous requests to remove pirated content.
Was SFWA wrong? There's no doubt in my mind that Burt mishandled the situation. He had a duty under the DMCA to have "a good faith belief" that each listed document was illegally posted, and the even stronger duty to claim authority to enforce the creator's copyright "under penalty of perjury." Listing documents that were legally posted and documents which SFWA had no authority to control, seriously undermined the rest of the claim.
Also, the claim simply didn't comply with the structural requirements of a takedown notice, and I think it's pretty clear that Burt either didn't know or didn't care what those requirements are. His email makes it sound like he was just trying to intimidate the operator of the pirate site, and intimidation is a terrible substitute for proper legal action.
But how does this compare with the wholesale copyright violations of this pirate site? It seems pretty clear to me who's being less respectful of the law. There's no real doubt that this site ought to be served with thousands of DMCA takedown notices, plus many more every day. In fact, there are legal precedents dating back to the early Napster cases that suggest this site would not survive a lawsuit properly brought by an organization such as SFWA that represents a large group of authors whose works have been pirated there.
Is it reasonable to expect SFWA and potentially hundreds of other authors to watch over every new post on this site and issue a takedown notice for the illegal ones? Of course not.
So, let's start over. SFWA needs to use something more sophisticated than a simple text search to identify pirated works. This is actually a much easier problem than the one faced by Flickr, YouTube, or other multimedia-sharing sites. In fact, SFWA's Burt has done some original work in this area, making it even more difficult to understand why he wasn't more careful to begin with. I think SFWA should work with this site to develop appropriate anti-piracy tools-- assuming the site's operators are willing, which they ought to be since the likely alternative is legal obliteration.
In parallel, the operators of this site need to implement measures that will discourage its users from uploading pirated works and allow the users to be punished appropriately (usually just by banning them from the service) if they do it anyway. That's how responsible media-sharing sites work today.
There's plenty of room on the Internet for a text-sharing site, but not one that is willing to be a hub for text piracy. Such a site could become valuable to the science-fiction community, since there is a lot of freely-distributed science fiction out there-- from Cory Doctorow, from the Baen Free Library (Baen Books), and from other sources. But to reach this happy future, all the parties to the current controversy will have to agree to put it behind them and move forward responsibly.
Will that happen? I dunno. There's a lot of anger on all sides right now, and the science-fiction community has a history of bearing grudges. But maybe everyone will realize the opportunity here is important enough to justify a more rational attitude. We can only hope.