Self-Pub Platform Autharium Issues Bogus DMCA Notice In Hopes Of Whitewashing Its Past

from the before-the-DMCA,-did-people-just-break-into-libraries-and-steal-microfiche? dept

Tue, Feb 25th 2014 7:20am — Tim Cushing

Update: An Autharium representative reached out to the Passive Voice blog to admit that sending a DMCA takedown was a "mistake". It's not clear whether this means that it was done in error, or that they've acknowledged their attempted abuse of the system.

The DMCA notice: the multi-tool abused by many. The most common abusive form is the issuance of takedowns to muffle criticism, which is what we have here.

Autharium, a British ebook self-publishing platform, took a bit of a beating last March for its absolutely horrendous Terms and Conditions. Passive Voice, a writer-oriented blog, was the first to expose just how much authors were giving up when they signed with Autharium. In exchange for publishing through Autharium, authors gave the platform exclusive WORLDWIDE rights to "produce, publish, promote, market and sell your Work in any Digital Form" for "the entire legal term of copyright." That's life plus 70 years in the UK.

If an author somehow managed to talk Autharium into reverting the copyright back to him or her, Autharium still retained exclusive, worldwide digital distribution rights. And "any Digital Form" included far more than just ebooks. Paragraph 1.4 of the publishing T&C originally listed the following as being under Autharium's exclusive control.

“Digital Form” means any and all electronic and/or digital forms and media whether now known or later invented or developed including (by way of examples only): (i) any e-book (i.e. using any means of manufacture, distribution or transmission whether now known or later developed including but not limited to electronic and machine-readable media and online and satellite based transmission intended to make your Work available for reading) (“eBook”); and (ii) any electronic version (other than an eBook) for performance and display (whether sequentially or not) in any manner (together with accompanying sounds, images, interactive and/or search features if any) by any electronic means, method or device (“Electronic Version”).

Word quickly spread around the web to other author/ebook-oriented sites like Writer Beware and The Digital Reader. The consensus was that this contract was even more exploitative than those offered by other infamous self-publishing platforms/vanity presses like Author Solutions.

Shortly after this uproar, Autharium wisely changed its T&C to something much more author-friendly, including giving their clients the option to terminate the contract and revert rights after three years. It also significantly narrowed its definition of "any Digital Form" by adding this sentence to the paragraph:

For avoidance of doubt this does not include physical or audio book forms, videos, film, television, merchandise or game forms.

As it noted on top of the "new" T&C page, this was overhauled in March of 2013, an effort which stripped away almost everything ridiculous and exploitative about the original. This massive restructuring allowed Autharium to add the following line to its "About" page, something it couldn't honestly have said at any point before the March 2013 revamp. (The wording isn't present in previous versions.)

No draconian length of copyright contracts, no signing away of movie, merchandising or physical book rights.

So far, so good. While it's a shame Autharium felt the original T&C was somehow acceptable, it did at least respond quickly to the criticism by making extensive changes. If only Autharium had left it at that.

For no discernible reason, nearly a year after the fracas (and Autharium's ensuing corrective efforts), Autharium issued a DMCA notice targeting Passive Voice's original blog post. (h/t to Techdirt reader BS Simon)

Dear Sir or Madam:

The content on the URL below infringes copyrighted text taken from our site without permission…

We hereby request that you immediately remove or block access to the infringing material, as specified in the DMCA.

Original work URL(s):
https://www.autharium.com/Page/author-publishing-terms-and-conditions

Allegedly infringing URLs:
0. http://www.thepassivevoice.com/03/2013/autharium/

While it could technically be argued that the "copyrighted text" was "taken" without permission, what was actually included in Passive Voice's post was five paragraphs out of 83 total. And it was clearly used as part of the commentary. It's very difficult to explain what's wrong with a contract's Terms & Conditions without quoting it directly, as was done here. Furthermore, there's nothing in the site's Terms & Conditions that forbids use of the site's text in this fashion.

This has every appearance of a company -- which originally did the right thing and fixed its horrendous contractual text -- attempting to whitewash the past, starting with the blog post that triggered the backlash. But why? Why do this when you've already addressed the problematic T&C and have started to win writers back?

The sad thing about the clearly bogus DMCA notice is that it worked. Passive Voice's post on Autharium's original T&C was originally on the first page of Google's search results. It's now been delisted, as noted by the message at the bottom of the page.

Passive Voice isn't just going to let Autharium pretend March 2013 never happened.

In the opinion of many, including PG [Passive Guy, blogger at Passive Voice], the legal remedies for bad faith takedown notices that are simply attempts at censorship are inadequate. For a further discussion of this problem, see this post on the WordPress Blog.

PG thinks an alternate remedy – sunlight – might work the best in this case.

Here is PG’s original commentary on the Autharium language without the inclusion of any language from the Autharium terms of service. PG is including his commentary so his opinions about what he believed to be unfair contract terms as they existed on March 10, 2013, will show up on Google.

Fortunately, The Passive Voice has a large enough audience so Google incorporates new posts into its search database very quickly.

And sunlight Autharium will receive. Instead of simply acknowledging that it had screwed up in the past, Autharium is trying to bury it. It changed its T&C for the better, but is now undoing any forward momentum by attempting to erase the past. This will only result in another round of negative press, and a company that used to look exploitative will now become a company that is currently censorious.

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Filed Under: copyright, dmca, publishing, terms of service
Companies: autharium

25 Comments

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Ninja (profile), 25 Feb 2014 @ 5:44am

Autharium has received the Streisand Seal of Approval! And the shitstorm that follows it.
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Dreddsnik, 25 Feb 2014 @ 7:29am

Companies can, and do, change their TOS all the time. This makes the more paranoid side of me think that now that things have quieted down, they want to quietly return the TOS to what is was before they were forced to do the right thing. It's the best way to repeat history ... making sure people forget it.
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Anonymous Coward, 25 Feb 2014 @ 7:33am

goggle "Autharium scam"
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Anonymous Coward, 25 Feb 2014 @ 7:36am

I think the most appalling thing here is that a platform intended to help writers publish their works uses such dreadful grammar in its LinkedIn byline.
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Anonymous Coward, 25 Feb 2014 @ 7:38am

Miss Steisand, you're on.
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zip, 25 Feb 2014 @ 7:50am

blank-check TOS
That's the biggest problem with virtually all TOS agreements - the company gives itself the right to revise the contract after you sign it, and bind you to the new terms.
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Anonymous Coward, 25 Feb 2014 @ 8:10am

They should rename their company from Autharium, to Authoritarian.
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Beech, 25 Feb 2014 @ 8:24am

Hanson's razor
I take this story with a slightly larger grain of salt than I usually would. It could very well be that this site just didn't want to get sued so it claimed every right it may ever need, sort of like the terms that come up in contracts when you're going to be filmedas an extra or something "you waive all rights to your image for use in this work in perpetuity, in this universe or others, in any extant dimension now known or yet to be discovered...etc etc" By way of example, look at all the insanity a year or so ago when facebook changed it's ToS and everyone thought it was trying to steal all your pictures and put them in ads or something.

The fact that they changed their ToS so quickly makes it sound to me like they weren't really trying to steal copyrights forever, more like they hired a lawyer to make sure their ass was covered, and the weasel suggested going way overboard.

That said, dmca abuse is obviously bad. Shame on them for that.
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John Fenderson (profile), 25 Feb 2014 @ 9:15am

Re: Hanson's razor
"The fact that they changed their ToS so quickly makes it sound to me like they weren't really trying to steal copyrights forever, more like they hired a lawyer to make sure their ass was covered, and the weasel suggested going way overboard."

That could be, but it still puts them in a terrible light. Did they not review the terms before putting them up? Seems unlikely.

In any case, whatever benefit of the doubt they may have had evaporated the moment they started abusing the DMCA.
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nospacesorspecialcharacters (profile), 25 Feb 2014 @ 9:26am

Snatching defeat from the jaws of PR victory!
I am by no means a PR consultant but even I could come up with some basic methods by which Autharium could have dinner this the right way...

+ 38pt font on the front page: "You complained, we listened: our new ToS ensures you keep your copyrights yada, yada..."

+ Write to the original blogger and politely ask for a follow up post on the changes... Better yet ask for a right to respond to the original post!

+ Make a donation to the EFF, or any other internet rights campaign... Use the money you just wasted on lawyers.

+ Offer interviews with popular tech blogs, there is no way they would refuse, they would eat that shit up.

This could have been a success story, instead it's just another facepalm footnote in the annals of internet history.
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Anonymous Coward, 25 Feb 2014 @ 10:16am

Bit weird
Hey B S Simon update for you, thanks for posting this story http://www.techdirt.com/user/simbry49 right?

You left out Passive Guys UPDATE from yesterday

http://www.thepassivevoice.com/02/2014/autharium-an-update/#comments
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John Fenderson (profile), 25 Feb 2014 @ 10:24am

Re: Bit weird
Ahh, the old "it was a mistake" dodge. Klassy.
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VC Lawyer, 25 Feb 2014 @ 10:44am

No Such Thing as a Bogus Takedown
Most of the cases I deal with are about incorrect information, defamation, libel and slander. There is no such thing as a Bogus Takedown under DMCA. Google are very strict. Google only remove links under the DMCA after they have validated a claim.

Copyright takedowns are very rare and only in extreme abuse cases where blog posts are concerned. DMCA Copyright takedown notices cover torrent sites, abuse of copyright photographs, large portions of unapproved book content posted - blog posts are always fair use.

I'll look and see if I can find anything on their site.
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Samuari, 25 Feb 2014 @ 10:56am

Re: Ninja
How much they they charge? I looked but it seemed free?! Is there a the hidden cost? How much?
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Anonymous Coward, 25 Feb 2014 @ 11:30am

Change of mind
Tsk tsk shame on me. Just looked at their terms March 2013. Boring read but no traps.
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That One Guy (profile), 25 Feb 2014 @ 11:40am

Re: No Such Thing as a Bogus Takedown
About that...

https://www.techdirt.com/articles/20130715/11202123803/hbos-latest-dmca-abuse-issues-takedown -to-google-over-popular-vlc-media-player.shtml

https://www.techdirt.com/articles/20130819/06364424230 /ip-arrows-dmca-takedown-notices-claim-ufc-lyndacom-hold-rights-to-child-porn.shtml

https://www.techd irt.com/articles/20131121/01431725317/wordpress-goes-legal-sues-over-two-egregiously-bogus-dmca-noti ces-that-were-designed-to-censor.shtml

https://www.techdirt.com/articles/20131118/02152325272/warner- bros-admits-to-issuing-bogus-takedowns-gloats-to-court-how-theres-nothing-anyone-can-do-about-that.s html

https://www.techdirt.com/articles/20130911/18073124494/mpaa-gets-its-wish-court-basically-says-i t-can-file-bogus-dmca-takedowns-without-concern-fair-use.shtml

https://www.techdirt.com/articles/2013 0814/17501024181/microsoft-uses-dmca-to-block-many-links-to-competing-open-office.shtml

https://www.t echdirt.com/articles/20130730/17572624008/rotolight-uses-dmca-to-censor-review-they-didnt-like-admit s-to-dmca-abuse-censorship.shtml

https://www.techdirt.com/articles/20130729/16181423993/microsoft-sen ds-google-dmca-takedowns-microsofts-own-website.shtml

The list goes on, and on, and on, if you'd care to wade through all the DMCA related articles on the site. Needless to say, bogus DMCA claims are filed all the time, and they are not rare occurrences by any means.
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Easily Amused (profile), 25 Feb 2014 @ 11:52am

Re: No Such Thing as a Bogus Takedown
"There is no such thing as a Bogus Takedown under DMCA. Google are very strict. Google only remove links under the DMCA after they have validated a claim."

You are either willfully being intellectually dishonest about the well-documented history in this area, or just woefully ignorant of the facts. In either case, you should stop taking people's money to handle lawsuits in the IP field until you study up, or just toss your law diploma in the nearest shredder and find work delivering pizza.

A simple search for "bogus DMCA" will return pages and pages of proof refuting your position...
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John Fenderson (profile), 25 Feb 2014 @ 12:22pm

Re: No Such Thing as a Bogus Takedown
"Google only remove links under the DMCA after they have validated a claim."

This is not just incorrect, it's belly-laugh-level wrong.

Unless, of course, you are using Google's definition of "validated," which means "properly filed and uncontested." It doesn't actually mean valid.
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BS Simon, 25 Feb 2014 @ 2:21pm

Re: Bit weird
I sent in the tip before the update.
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Danny, 25 Feb 2014 @ 4:17pm

Re: Re: Bit weird
The Passive Guy update yesterday?

'The revised language no longer appears to hook any unwilling author into a long-term relationship with Autharium.

PG says this is an enlightened and intelligent response from Autharium.'

http://www.thepassivevoice.com/02/2014/autharium-an-update/
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Anonymous Coward, 25 Feb 2014 @ 4:43pm

average_joe just hates it when due process is enforced.
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G Thompson (profile), 25 Feb 2014 @ 7:27pm

Re: No Such Thing as a Bogus Takedown
your comment reeks of Pedantic claptrap & Bullshit!

and I gather now that VC stands for Virtually Clueless, interestingly it seems anyone else with even a laypersons legal knowledge of legal knowledge about copyright, how Google operates in regards to notices also understand this too..

Also lawyer? and you have typed slander, libel AND defamation in the same sentence? *facepalm*
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G Thompson (profile), 25 Feb 2014 @ 7:32pm

Re: Re: No Such Thing as a Bogus Takedown
Also in regards to the totality of the stupidity that is your 2nd paragraph and how you make an absolute claim to what happens and what doesn't..

Well there is a client waiting for in Prenda Law et.al. In fact you seem to have met and exceeded their criteria for becoming their lead counsel. Congratulations
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Sunhawk (profile), 27 Feb 2014 @ 11:59am

Re: blank-check TOS
Fairly sure such terms don't work like that - that is, a company can't change the terms on someone willy-nilly.

I'm thinking of that... was it a jewelry seller? Suing over negative reviews.

Any changes are also limited by a court's interpretation of "reasonable". For example, declaring six months after signing a two-year cellphone contract (with really nasty penalties for breaking it) that the monthly price has increased by an order of magnitude is not kosher.

Which is why generally contract changes only take effect on 'turnover' (ie, a renewal for the old contract isn't offered, only the new one). Companies tend to put "free to change at any time" in terms and conditions, but it actually standing up in court if they try to enforce the 'new' terms (unless, of course, the user has been prompted to agree to the new contract and has done so) is uncertain.

At least, that's my understanding.
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Gwiz (profile), 27 Feb 2014 @ 12:25pm

Re: Re: blank-check TOS
Which is why generally contract changes only take effect on 'turnover' (ie, a renewal for the old contract isn't offered, only the new one). Companies tend to put "free to change at any time" in terms and conditions, but it actually standing up in court if they try to enforce the 'new' terms (unless, of course, the user has been prompted to agree to the new contract and has done so) is uncertain.

Haven't you ever received a mailing from your ISP or phone company or some other company with a new TOS written in very small print? If you actually take the time to read those things (which nobody really does) they almost always have a clause that says "By continuing to use our service you are agreeing to these new terms".

The only way to not to agree to the terms is by cancelling the service. That's how a company can change terms on someone willy-nilly. And it usually works too.
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