The law firm of Camara & Sibley has decided to take on document-sharing website Scribd in a big way, seeking class action status against the site in a lawsuit filed Friday in a Texas federal court. The charge: like YouTube, Veoh, and other user-generated content sites, Scribd makes it just too easy to upload copyrighted content without permission, and the company should be held liable... and pay up.

What about all those cases (including the recent Veoh ruling) which broadly construe the DMCA's "safe harbor" provisions to protect these kinds of websites so long as they promptly take down content when notified? Hey, those cases are all out in California, baby! It's time for Texas justice.

An egregious infringer?



What's odd about the case isn't that it was brought; given what has happened to most other user-generated content sites, such a lawsuit was probably inevitable. No, what's odd is that the case was brought by Camara & Sibley, the Houston law firm housed in a "custom-built four-story Tuscan building beside Rice University featuring a fourth-floor deck with 360-degree views of Houston and a built-in grill and wine cellar." Remember, these are the lawyers who are:

Defending Apple nemesis Psystar, the company that sells its own computer hardware preloaded with Mac OS X.

Defending Jammie Thomas, the target of the RIAA's first anti-P2P case that went all the way to trial. Currently, the team is arguing that the $1.92 million in damages from Thomas' retrial are "excessive, shocking, and monstrous."

Still (apparently) planning to file a class action lawsuit against the RIAA in order to "get the $100 million that they stole" from people as part of the group's long-running litigation and settlement campaign against file-swappers.

This time out, though, they represent one Elaine Scott, a Houston author who was horrified to find her 1985 book Stocks and bonds: profits and losses available for download on Scribd; someone had apparently taken the time to scan the entire thing and upload it to the site. Scott noticed that the book had been downloaded more than 100 times and grew incensed that her copyright was being violated. So she notified Scribd, which takes works down when it receives a DMCA takedown notice (as do all US-based user-generated content sites that hope to stay in business).

But the fact that Scribd would take down the book was beside the point; it shouldn't have been there in the first place. Echoing a view that is common among rightsholders, Scott and her lawyers argue that it simply can't be the case that the onus for protecting copyrighted works falls completely upon the rightsholder. That is, sites like YouTube or Scribd shouldn't be able to host copyrighted works, profiting from them indefinitely until a copyright holder takes notice and asks them to stop. Such a system puts a terrific burden on rightsholders if they want to keep their works off of such sites, especially if someone else can simply upload another copy.

In the words of Kiwi Camara, Scott's lawyer, "The West coast technology industry 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 respond to such complaints... Scribd, Inc, is one such egregious infringer."

One of the unexpected twists to the complaint is that Scribd has actually developed a copyright protection system. When authors send a takedown letter to the site, Scribd adds the offending document to its system to prevent other people from simply uploading it again. But this itself is another act of copyright infringement, according to Camara; Scribd is copying the text of the book or document in question without permission for use in this system, even though the copyright protection system itself might someday turn out to be worth more money that the document storage side of the business.

As for the DMCA, Camara points out that most such court cases have taken place in the Ninth Circuit, which includes San Francisco and Silicon Valley. Such rulings don't automatically have precedent in Texas, and Camara argues that the Fifth Circuit might well come to different conclusions. He also contends that Scribd isn't a "service provider" at all, but a publisher—which would remove the DMCA immunity—and also that Scribd makes money directly off of infringing works (by showing ads), which could also threaten safe harbor protection.

Camara wants to extend the case to an entire class of authors; this fits with what he told Ars this summer, when he said that when his firm takes cases, "we want to fix a problem for a lot of people, including our client."

As for that client, she's quoted in the complaint, too. "I bring this complaint," says Scott, "because I believe that just as it isn't right for children to steal words, it isn't right for websites like Scribd.com to do it, either... If that behavior is allowed to continue I believe it makes a mockery of the copyright laws of the United States and sets a terrible example for all."

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