Trisha’s Take: How to properly issue and respond to a DMCA takedown notice (SFWA edition)

Look. Fucking 1) As far as I know, this all happened in, like, the last 24 hours. 2) It didn’t go through me or the board.
— Rachel Swirsky (@rachelswirsky) December 10, 2013

3) Laws happen. In the event that copyright holders don’t want whole things up on the ‘net, then they can takedown notice them.
— Rachel Swirsky (@rachelswirsky) December 10, 2013

4) On the other hand, copyright holders don’t *have* to ask. And if it’s SFWA asking on its own behalf, I’ll try to get it to stop.
— Rachel Swirsky (@rachelswirsky) December 10, 2013

Coupled with a perspective-changing email exchange with Jim Hines, the response from my attorney, and encouraged by Swirsky’s words, I contacted her directly to explain what was going on from my viewpoint and asked if there was any way the SFWA and I could come to an agreement on whether or not I could continue to use the .PDF of the Dialogues column to illustrate the points I raised in my article.

After some discussion, we agreed that posting the column in its entirety was perhaps exceeding the fair use doctrine and that posting excerpts from the article was sufficient proof of Malzberg and Resnick’s opinions. As such, I have revised my article to include only those portions that are relevant to my arguments and have removed the .PDF content from my webspace.

Swirsky also confirmed by email that an actual DMCA notice had indeed been sent to Scribd, a copy of which I was able to obtain:

The DMCA takedown wasn’t authorized; it was mistakenly filed by an employee.

Personally, on behalf of myself as the VP and not on behalf of the whole board, I apologize for the organizational instability that caused that to happen, but it seems to have been a one-time mistake. I am very strongly attached to the fair use exemption which I think is vitally important to social vibrancy and discussion. I do think that posting an entire article exceeds fair use, but I’m very pleased we can amicably move forward to finding a solution that’s satisfactory for everyone.

Like Swirsky, I also believe that in order to be able to continue to have meaningful and productive “dialogues” about contentious issues in not just the science-fiction/fantasy community but in all communities, there needs to be free and open public discussions.

I believe this entire mess could have been avoided had Malzberg and Resnick come forward to me personally and asked politely that I remove the article—something which could have been done quietly in the six months since their “Talk Radio Redux” column was published. I can only speculate that it was the Lit Reactor article by author Rajan Khanna which fanned the flames of interest in the content I posted to Scribd—an article which summarized a range of controversies in the science fiction/fantasy community, two of which were directly connected to the SFWA.

I believe that when a person says something that can be seen as problematic by other people, that person should understand that there are social consequences to free speech up to and including having those words follow you around for the rest of your career in some form or another.

I most definitely believe that there should be some mechanism by which journalists and bloggers who are not members of the SFWA can have access and the ability to reprint or link to material directly from the Bulletin in reviews or opinion pieces—especially if those pieces paint the SFWA or its Bulletin contributors in a negative light—without fear of reprisal.

I may not be a super-popular blogger or a “Big Name Fan,” but that doesn’t give any individual the right to attempt to intimidate me or anyone else by falsely using tools the government has provided to remove content connected to articles which are critical of themselves or others.

It’s thanks to Swirsky and other cooler heads behind the scenes that this didn’t escalate further. For that, I hope that the SFWA membership—of which I still hope to become one day—is grateful that they have her leadership.