by Victoria Elman and Cindy Abramson*

A pdf version of this article may be downloaded here.

American author Elaine Scott has recently filed suit against Scribd, alleging that the social publishing website “shamelessly profits” by encouraging Internet users to illegally share copyrighted books online. [FN1] Scribd enables users to upload a variety of written works much like YouTube enables the uploading of video content. [FN2] The content uploaded to the Scribd website is then accessible and downloadable by anyone who becomes a free member of the site.  Scribd claims that its Copyright Management System (“CMS”) goes “beyond the requirements set forth by U.S., UK, and EU law.”[FN3] While the implementation of a copyright filter is not mandated by the Digital Millennium Copyright Act (“DMCA”), [FN4] it has been encouraged by courts in recent litigation determining Internet Service Provider (“ISP”) liability.[FN5] Despite the fact that courts encourage the use of filters, Scott’s second claim alleges that Scribd’s use of the copyrighted work to filter infringing copies itself constitutes “ongoing and permanent” infringement without permission or compensation to the author. [FN6] On one hand, the suit attacks Scribd for allowing the uploading of infringing works; on the other, it claims that Scribd’s attempts to filter the website of these infringing works without explicit permission from the copyright holders is itself infringing.