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When Documents Are Challenged

Posted
Apr 5th, 2012

Tags
Documents,IdeaLab

Author
Mark Horvit

Last week, DocumentCloud received a complaint seeking the removal of a collection of emails posted by journalists with the Australian Financial Review. The emails involved a company called NDS, which hired a law firm to try and have the documents pulled from public view. This kind of thing is rare, but it happens. This case in particular has a couple of wrinkles that make it unusual, and it presents a good opportunity to remind all of our members that DocumentCloud has policies and options in place that allow you to keep all documents processed through our service available to the public for as long as you desire.

I’ll detail those below. But first, a little context.

DocumentCloud was created as a 501c3 nonprofit organization and remains so as part of Investigative Reporters and Editors (IRE). The service is offered free of charge and all expenses and manpower are covered through grants and IRE’s normal operations. We provide a suite of tools that allow you to analyze and publish documents, and we don’t control what you post. And, we don’t have a large budget to fight legal challenges to items you post.

There have been only a handful of cases in which DocumentCloud has received legal challenges to material posted on the site, where we now host more than 4 million pages.

Typically those challenges have involved allegations of copyright violation. In every case, we have contacted the posting news organization and asked them how they would like to handle the complaint. Our terms of service detail how we handle those cases, using a process based on the Digital Millennium Copyright Act (DMCA). DocumentCloud is a neutral party hosting content on behalf of users and is protected by the DCMA’s safe-harbor provisions. If we receive a formal complaint, we contact the organization that uploaded the material. If they assert their right to publish, the documents remain public and the matter is resolved between the complainant and the posting organization.

We also offer an alternative for organizations that would prefer to host their own documents and still use DocumentCloud’s viewer. A number of news organizations have chosen this option, for a variety of reasons. We make document data and our viewer code available for download to journalists directly through our workspace. Downloading a viewer will provide a news organization with an html file that is functionally indistinguishable from the viewers we host.

It’s also worth noting that all of our software is available free and open source to any journalist or software developer who wishes to use or improve upon it (and members of both groups have done so).

The case that came up last week involving the Australian Financial Review presented some new issues. The company filing the complaint over the posted emails alleged a variety of issues, but didn’t cite the DMCA. AFR opted to take down the documents rather than provide us with a letter asserting their right to publish and offering indemnity for DocumentCloud. The company said it did so because it believes that action is more appropriate in Australia, so it did not wish to become involved in a U.S. dispute with NDS. They opted to download the viewer, and AFR plans to repost the documents using the DocumentCloud software.

Dealing with such challenges is an inevitable byproduct of hosting documents. If you have questions about our policies or suggestions on how we can improve our service, please get in touch; my email is mhorvit@ire.org.

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