Lawsuit: Copyright Filtering Technology Infringes

By: David Kravets

Copyright filtering technology is a form of copyright infringement, according to a lawsuit against document service Scribd.

The lawsuit, lodged in a Texas federal court Friday, broaches a novel legal theory in which the U.S. courts have never squarely decided.

The suit maintains that the copying and insertion of a copyrighted work into a filtering system without compensating the copyright holder, or obtaining their consent, is a violation of the Copyright Act. The case comes as copyright filtering technology is quickly becoming a behind-the-scenes feature on university sites, user-generated content sites and online social networking venues.

“Without permission of the authors, Scribd maintains copies of authors’ works for use in a copyright protection system,” according to the suit. “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.”

Scribd, of San Francisco, provides a website with storage, searching and retrieval of documents and, according to the suit, a “copyright protection system fed by stolen works that is used to identify and prevent the uploading of unlicensed copyrighted works.”

Scribd was not immediately prepared to comment in a case seeking class action status.

In general, once Scribd inputs content into a filter, that content is removed or filtered from Scribd’s public document site even if Scribd consumers subsequently upload that same content.

The case was brought by children’s writer Elaine Scott, whose 1985 Stocks and Bonds was being hosted at Scribd and downloaded about 100 times, according to the suit. She sent the company a takedown notice and sued.

“I bring this complaint 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,” she said.

So far, the courts are on Scribd’s side, at least insofar as whether Scribd enjoys protection from the Digital Millennium Copyright Act. The DMCA immunizes hosting services from copyright liability if they comply with takedown notices to remove a work that is publicly available.

The recent Veoh decision we just wrote about falls into this line of thinking.

That said, the filtering technology allegations are not as clear cut.

“This question has always been an issue,” said Fred von Lohmann, a copyright attorney with the Electronic Frontier Foundation.

One of the closest cases on point, he said, was in 2007, when the 9th U.S. Circuit Court of Appeals in San Francisco ruled that Google was not breaching copyrights by hyperlinking to images as part of an image index.

In the end, von Lohmann speculated that Scribd would win the filtering argument.

“I think this is clearly a fair use. Both because we have the 9th circuit case that making copies of images online in order to index them is a fair use. And because this use doesn’t hurt the market for the copyrighted works. In fact, it helps the market for the copyrighted work.”

Audible Magic, of Los Gatos, California, which is one of the largest filtering companies having contracts with dozens of universities, MySpace, YouTube and Facebook, obtains the copyright holder’s permission before it filters that content.

“The copyright owners are the ones who submit the content to us,” spokesman Jay Friedman said. “They are the ones that own the content.”