Treating authors like a commodity – was not done as best I can tell. The list(s) were never meant to include Doctorow’s work; the original intent was to go for works of an SFWA represented author: Asimov. I’ve pointed out, and you’ve agreed, that the list was vetted. So, without quibbling over analogies, the question still remains: exactly how much effort must be put into such a notice, before you and all the other naysayers will agree that it was sufficient – even if an error is later found? Because it sounds as if you are saying that no matter how hard an author or his representative works – if he makes even one mistake, he is the bad guy. Meanwhile a site like Scribd can continue posting infringing works, knowing that they will be held to a much lower standard.

I guess this point is, for some people, difficult to see. I suspect it will become clearer, as more pirate sites create a situation where even an author with a fulltime lawyer working for him still doesn’t have time to find infringing copies, generate proper DMCA notices, and triplecheck each one.

Anyway, the point stands. Is it due diligence to do a general once over of the car with the best intention of thoroughness? Or must one disassemble the whole thing and x-ray each part with auditors standing by?

Your comparison is flawed, because it assumes that each item on a DMCA notice corresponds with a car part. Instead, each item corresponds with a separate car. If you are selling a thousand cars in one go, and two of them turn out to have shoddy brakes, you won’t just get off with the statement that you had spot-checked the brakes.

Throughout this I have hypothesized, btw, that this is exactly the mistake that SFWA made; that they saw SF works as some sort of commodity, which could be spoken for in bulk.

To answer your other question, the bad intent lies in that assumption. As they say in the Netherlands, ignorance of the law is no defense. You cannot break the law, and then claim that not knowing the law is a sign of good intent or of a clear conscience — especially not if you broke the law in using that law as an instrument.

The irony here, btw, is that if the SFWA had not compiled a list, but had instead sent a real DMCA take-down notice that did not contain a list but instead merely told Scribd.com to take down all Asimov works and derivatives, it would have been a legal notice, and they would have been entirely in the clear — at least according to my understanding of DMCA jurisprudence. IANAL.

Anyway, the point stands. Is it due diligence to do a general once over of the car with the best intention of thoroughness? Or must one disassemble the whole thing and x-ray each part with auditors standing by?

Dr. Burt wrote a simple program to generate a list of documents that might be pirated. It generated hundreds, of course. He then looked at each one.

So Burt did not look merely at hundreds of the items on his list, he apparently looked at each one.

We disagree there.

“Pournelle says that Dr. Burt did check hundreds of the entries on SFWA’s list, and that because of the way Scribd’s site was laid out, this took considerable time. He then sent it on, confident that he had done due diligence.”

Except that he had not. Due diligence would have meant checking every item, not checking one in two. It would have been different if Burt hadn’t spent a lot of time on works that obviously infringed on the copyright of the authors he represented, but it is impossible that he would have missed author names of authors he did not represent if he had looked at actual Scribd pages.

As Cory Doctorow suggests, and I completely agree that this is the most likely thing to have happened, the list was probably generated by running a computer program (like grep). Maybe Burt did look at a few titles on that list, but he did not look at all of them, as he should have. That is not what most people call due diligence; it’s what most people call sloppiness.

Suppose I diligently study a law for 2 full days. I make every effort to understand it as fully as I can. Then I am called to testify about the meaning of that law, and through some fault of my own understanding, or the way my study materials were written, my testimony is incorrect – even though it was completely my intention to tell the truth.

Is this perjury? Not in the eyes of the law. It is not a guilty act – it is an error, committed without guilty mind. I should be admonished for committing a factual error, but not penalized for telling an intentional lie.

Now, if I had some understanding of what the truth was, and made efforts to study and quote only those things which obfuscated the truth I was aware of, then I would have mens rea, guilty mind. My intent to deceive would indeed be a culpable act, punishable in law.

Pournelle says that Dr. Burt did check hundreds of the entries on SFWA’s list, and that because of the way Scribd’s site was laid out, this took considerable time. He then sent it on, confident that he had done due diligence.

In Branko’s car story, this similar to the seller having taken the time to go over the car and thoroughly test-drive it, and finding no faults, selling the car. However a car is a complex assembly of parts – is the seller held responsible for a later problem because he did not take the car apart and inspect every piece with an x-ray machine?

This is what I’ve been trying to get at all along. Exactly how much due diligence is required to satisfy those who’ve criticized SFWA in this matter? Should they have spent 1 hour writing and checking their request? 1000 hours? A million hours?

I’ve never disputed that mistakes were made by both parties. What I’ve been peeved with, throughout this episode, is that SFWA’s much smaller (and apparently unintentional) mistakes earned them almost all of the negative attention, even though SFWA scrambled to correct them immediately. They were called bullies and worse, everywhere this was reported.

Re: perjury. I call this out as a matter of law, because you raised it as such. I do not think that a person who “makes sure that they don’t know what they are talking about” can tell a lie with impunity; I think that this would satisfy the quality of mens rea I mentioned earlier. The question is one of intent, as I’ve been clear in saying. SFWA seems to have had little or no intent to be bad guys. Now, the road to hell may be paved with good intentions. But at least let us make room for the fact that good intentions exist, rather than jumping to the conclusion that the guilty mind exists – as your phrasing still suggests you are doing.

I can understand that someone should take pains to be accurate when swearing out a legal complaint. But is the standard “total perfection, or just don’t try”? My reading of the definition of perjury does not indicate that. From what I have been able to see, SFWA did put a lot of effort into checking their list. How many hours should they *have* to put in, before folks will admit that they did give it an honest effort, though?

And so the three questions, which I admit were designed to encourage contemplation of which party appeared to show more intent to sidestep the legal and moral issues around this whole affair. I’m open to hearing more evidence, but right now, in my eyes, that was very clearly Scribd.

As I’ve said before, I just think we need to dial back the rhetoric a bit. That’s all.

You seem to be thinking that as long as somebody makes sure they don’t know what they are talking about, they can tell any lie they wish to a court. Perhaps you’re right, but I would definitely be surprised if that were true.

As for your rhetorical questions, they were just that, right? You did read my discussion about “two wrongs”, did you not?

What I disliked about this whole discussion so far is the suggestion that I only have eyes for one side of the story. I have only eyes for the story, which is a different thing. It is not as if the SFWA is a victim here; the authors are — which makes their story the more interesting one. And since the DMCA is regularly being abused to stifle speech, I don’t think it is too strange of me that I once again try and call attention to that very real problem.

Also, now that the SFWA has turned around and acknowledged that it is the authors who get to decide who distributes their works (which, by the way, fair use and what not, but, whatever), I am among the first to acknowledge that too, and commend them on it.

You have to wonder though whether the SFWA would really have come up with such a clear statement if the only people to report on this issue would have been yes-men.

BTW, just because I dislike aspects of this discussion doesn’t mean I dislike the discussion on the whole. Indeed, the more this issue gets brought to light and disseminated, the better IMNSHO.

While I respect your viewpoint and your obvious interest in this situation, I submit that you may not fully understand the legal definition of ‘perjury’.

You seem to be suggesting that anytime a person gets a fact wrong and is testifying under penalty of perjury, they have committed perjury. But this is incorrect; perjury must include both mens rea (’guilty mind’) and actus reus (’guilty act’). So, if under oath I said ‘2+2=5′ and it was an honest mistake, I would not be guilty of perjury. Hopefully, once shown wrong, I’d cheerfully correct my erroneous statement, as SFWA did. If I made a wrong statement with the intention of misleading the judge/jury, and knowledge that I was doing so wrongfully, then yes, I would be guilty of perjury.

SFWA’s actions don’t appear to have guilty mind or guilty act stamped on them. To me they look like honest mistakes committed in the act of honestly attempting to protect their own rights.

And yes, I have seen more than a few people suggesting boycotts of any work by those involved with SFWA. The overall thrust of articles on this matter have served to lionize SFWA, which is nothing more than a collection of authors. I don’t understand how you can say “Scribd was merely an agent for the SFWA in this”. Scribd never acted as SFWA’s agent?

Here are some simple questions: 1) Who had the higher error rate: Scribd in its publication of thousands of infringing works, or SFWA with less than 10 mistakes in a list? 2) Who had their errors repeatedly called to attention, and either failed to respond at all, or said in essence “thanks but you have not used the approved form for telling us this, so we do nothing” ? 3) Who on the other hand said “Oops! This is a mistake, we’ll fix it immediately, and we are very sorry it happened” ?

The difference is that you portray a mistake as a “wrong”. You have characterized the act of the SFWA as an act of perjury, a crime of intent, rather then a mistake.

I don’t portray lying on a DMCA take-down notice as perjury, the law does. I do portray the act of the SFWA as a wrong, because it is. Not because they are not allowed to make mistakes, but because their mistake is the result of a sloppy and cynical methodology that, had the notice truly be a DMCA take-down notice, would have landed them in criminal court.

Please note that it was the SFWA that claimed their list was intended (!) as a DMCA take-down notice. Perhaps that was the mistake you were referring to, but that wasn’t what the SFWA apologized for.

You have also tried to say that this is all about the actions of the SFWA and not about Scridbs actions/inaction which is, in my opinion, incorrect.

I focus on the SFWA and not on Scribd because Scribd’s case seems cut and dry. There’s nothing to add there, because it is clear that they were wrong.

Since Scribds stonewalling of all polite and informal efforts lead to the follow up list.

We are returning to the two-wrongs-don’t-make-a-right thing. Even if lying about the copyright status of a work wouldn’t be legally wrong, it would still be morally wrong, and in the sport of wrongness it would be playing the major league. There is very little difference between pirating an author’s books, thereby denying him (or her) to exercise full control of the distribution of those books, and illegally cajoling a provider into pulling these books from distribution.

If you think that is all exaggerated, consider this: what if Scribd had been selling an author’s books, with the author’s permission, and the SFWA had listed those books?

The wrong in this case is that the SFWA showed just as much respect for another’s copyrights as Scribd did, which is: very little. That it should be Doctorow who gets so incensed about this is no surprise: the SFWA has a history of being disrespectful of his copyrights, as I demonstrated in the article.

I certainly feel the SFWA holds the moral high ground in this matter.

In the case of SFWA versus Scribd: yes, absolutely, without doubt. In the case of SFWA in general, considering their dubious stance on copyright: no, they don’t seem to hold any moral ground. Their philosophy seems to be that it isn’t the author who gets to decide what happens with his copyrights, and although that is and always has been a very popular philosophy among a large chunk of all publishers, estates, and groups pretending to represent creators, it’s still wrong.

You have also tried to say that this is all about the actions of the SFWA and not about Scridbs actions/inaction which is, in my opinion, incorrect. Since Scribds stonewalling of all polite and informal efforts lead to the follow up list.

To put it another way you seem to be either offering a free pass or trying to significantly downplay the wrong doings of Scribd in this matter while trying to portray SFWA as a villan having sinister intent to suppress freedom of expression which is not the case at all.

I certainly feel the SFWA holds the moral high ground in this matter. Scribd ignored all polite and informal requests to remove copyrighted material they knew without doubt was on their site. Were not talking about stuff owned by mega-corportions or J.K. Rowling income level authors here. Were talking about people or the wives/husbands/children of deceased individuals who relied on these works for their income. SFWA in the process of trying to get Sribds to do the right thing made a mistake which they corrected and apologized for as soon as it was brought to their attention. Which is a hell of a lot more then can be said of Scribd.

On the other hand Scibd was certainly aware that they had from all accounts thousands of copyrighted works on their site for months and completely stonewalled the SFWA when they made polite requests to have them removed. Requests initiated by members who asked for their assistance in the matter. Given the circumstances trying to portray the SFWA as the bad guy in all this seems questionable to me.

I hear now that they managed to force the SFWA out of trying to protect their members copyrights they are now starting to clean up their act by removing copy protected works. Guess being accused of being a pirate site doesn’t look good when your looking for investors. Too bad they couldn’t do the right thing two or three weeks ago instead of demanding DMCA notices be sent before they took action.