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Harlan Ellison Can Sue AOL Under DMCA
mbstone writes "The U.S. Court of Appeals for the Ninth Circuit ruled that sci-fi author Harlan Ellison can go ahead with his DMCA lawsuit against AOL. Seems somebody posted some Ellison stories to Usenet, AOL made 'em available, Ellison complained, and AOL blew him off."
This is ridiculous, the document reads "Stephen Robertson posted copies of some of Ellison's copyrighted short stories on a peer-to-peer file sharing network, the USENET.
Since when is USENET a P2P Filesharing network? Ok, you can find a lot of stuff in it, but it's NOt peer2peer and file-sharing , it's client/server and message-posting! It's a totally different thing.
My Stack Overflow user
What, is Ellison mad because too many people are downloading his "Wear Sunscreen" speech?
"If I could offer you only one tip for the future, sunscreen would be it. The long-term benefits of sunscreen have been proved by scientists, whereas the rest of my advice has no basis more reliable than my own meandering experience. I will dispense this advice now.
Enjoy the power and beauty of your youth. Oh, never mind. You will not understand the power and beauty of your youth until they've faded. But trust me, in 20 years, you'll look back at photos of yourself and recall in a way you can't grasp now how much possibility lay before you and how fabulous you really looked. You are not as fat as you imagine. "
You idiot, the sunscreen speech was really written by Kurt Vonnegut Jr.
If you think there are no files present on Usenet, try looking in the alt.binaries.* hierarchy (which is not carried on GoogleNews). You'll find hundreds of thousands of files of all kinds, especially media.
If an author can sue every single ISP for damages, everywhere, we enter a nasty realm of "okay time to shut anything that might be infringing down."
What ISP can afford to filter every newsgroup manually? What ISP can sit there and act on anything but complaints?
An author deserves protection, but the person responsible for posting it is the one liable--not the ISPs who provide the avenue by which an author's works are distributed.
What's the matter, Harlan? Not enough money lining your pockets from your successful writing/consulting/speaking career?
Bah.
I don't know, but it sounds to me a lot like part of Chris Rock's "No Sex in the Champaign Room" speech. If anyone should sue AOL, it should be Chris Rock.
I guess he plans on suing every NNTP server operator on the web. Watch your backs if you are running one of these. Of course eventually what this means is that ISP's will have to filter all content on the internet besides just terrorist information, child porn, scientology, etc. This is a slippery slope that we've gone down. Personally I quit reading all of Ellison's stuff when he decided to just sue them as his 'business model'. I know he wants to protect his property but why not write material people such as myself would pay for (I don't download copyrighted music or books) rather than steal. As it is I choose to boycott people who sue for a living with my wallet.
In accordance with the DMCA, Ellison's lawyer sent AOL an email with notification of infringement. AOL ignored the email.
Actually, Ellison was kinder to AOL than the RIAA has been to file sharers. This is the same thing, only it wasn't music, it was literature.
The judge ruled that the lower court was wrong to issue summary judgement that infringement did not occur, even though the facts were accepted by both parties that the copyrighted material was posted.
Pavlov wouldn't be so famous if he'd used a can opener instead of a bell.
The larger issue is that each Usenet group is carried, in its majority (not necessarily whole) by hundreds, possibly thousands of companies across the globe. Tens of thousands of messages pass through thousands of groups daily. Any server carrying a large percentage of groups with a standard policy for deletion should be treated as a common carrier. The case here should revolve around whether notice was served and responded too.
Otherwise, all Usenet would be vulnerable to this kind of attack, and companies might begin to shut down a valuable means for information exchange on the presumption of the guilt of its users. It isn't like this is a single company who can fight using the "substantial noninfringing uses" argument.
Of course, this doesn't exclude the fact that he contacted 2 of the hundreds or thousands of companies with news feeds. What about the rest? Did he not know how the system worked? He should be taking out potential losses on the hide of the person who posted the material.
"I Have No Morals Yet I Must Sue"?
I know he wants to protect his property but why not write material people such as myself would pay for (I don't download copyrighted music or books) rather than steal
There is no theft involved in duplication of files. It does not meet the definition of theft. Copyright infringement is something different.
Did I steal your car if I created an exact duplicate of it, and drove away (in the duplicate) leaving your car sitting, still untouched, in the driveway? Of course not.
In related news, every McDonald's in the country has a photo of Harlan posted, with instructions NEVER to serve him hot coffee.
Is it really that surprising that a stupid lawsuit is the direct result of unfair and unreasonable legislation such as the DMCA? Wouldn't it be nice if AOL took the DMCA all the way to the Supreme Court on the grounds that it is unconstitutional? Of course, that's unlikely because AOL/TW actually want the DMCA -- they just don't want it to apply to them.
"The evil of the world is made possible by nothing but the sanction you give it." -- Ayn Rand
If I have copyrighted or patented my car, then yes it would be stealing
The only difference copyrighting/patenting your car would make is that the situation would now be one of infringement. There STILL would be no theft involved.
Taking ones ideas if you patented or copyrighted them is protected under current law.
Certainly, but it still isn't theft. Also, the use of "taking" is misleading, as it does not meet the definition of "take" actually: the original remains, it is not moved.
Doesn't that strike any of you as odd? He's effectively using a draconian law that devalues the importance of the human need to share thoughts and ideas, but at the same time it would be a hypocracy for such thoughts not to be shared with others.
Of course being around 70 years of age, he's probably just getting old and cranky now...
I could *maybe* see some validity to the suit if the original poster had used AOL to post the stories *and* Ellison had sent something more substantial than an email to AOL (say, maybe a cease and desist letter) *and* AOL *then* blew him off, before bringing suit.
But it seems to me he first acted against the user's ISP to get him bounced and the source articles taken down, then looked around for the deepest pockets he could find so he could get some money.
So, be careful of gloating about AOL - as much as people love to hate them, it sounds to me like they are an innocent party to this fiasco, and if they go down the rest of the net's ISPs could go with them.
P.S. - it doesn't seem to me that AOL "blew him off" - as far as I can tell AOL never got the email.
Too bad he's stuck under the 9th Circuit. It probably won't be too much longer before their decisions get overturned by default.
Looking at it, it does look like he still has to clear several hurdles. So this isn't a sure thing. You can read about Harlan Ellison's general efforts to deal with protecting author's copyrights here.
You are not alone. This is not normal. None of this is normal.
Bottom line, once it's posted to usenet, it gets distributed, and AOL doesn't have much in the way of control. IMO, they should have issued a cancel just to cover their ass, removed the messages from their own usenet servers, and then told Harlan "We did what we could, and it's up to you to locate and contact anyone running another server".
As it sits, it sounds like Harlan contacted them only by email, and if they simply say "Sorry, didn't get it" I don't see how he can prove anything. We've all seen spam filters and software problems eat email, and I doubt a court is going to accept "I emailed them, so they knew!" as a valid argument.
I hope he wins. Anything to limit the availability of Harlan Ellison's crapulous prose will be a boon to humanity.
Proud member of the Weirdo-American community.
He scans the book to HTML and uploads it to a filesharing network. He has stolen my right to distribute my work on my terms.
That is not actually theft. You are intentionally abusing the meaning of the word. It is like if someone posts a VR story on Slashdot before I do I whine that "they STOLE my right to post it first!". In any case, you can still distribute it on your own terms.
Please put this argument to rest
I will as soon as people stop using words that do not apply, in order to try to score emotional points. Copying just does not involve theft. This does not mean it is right, moral, or legal.
By registering as Sheetrock, you STOLE my right to register as Sheetrock myself, for example. Give it a rest. Don't us the term stealing/theft for situations where it is not involved. It is moronic.
"It's used as a particularly moronic crutch by some avid P2P fileswappers"
Knowing that it is technically impossible to steal a thing by downloading or p2p is a matter of knowing what's what. It has nothing to do with crutches or justification.
You don't have to be a p2p user to know this.
~~~
I saw him speak at MIT with Neil Gaiman and Peter David a few years back. Gaiman was delightful, and David didn't make much of an impression on me one way or the other, but Ellison had me squirming in my seat. The man is rude and self-centered, and once each speaker's alloted time was up, he monopolized the stage and shouted down questions from the audience he didn't agree with. He cut David off in the middle of an anecdote because they were running over and "I want to read my story!" Which he did. All of it. Long past the time the program was scheduled to end. Gaiman and David left to go sign autographs, and I left to go sit in the lobby.
Maybe if he rescued crippled orphans from war zones for a living, I'd put up with that kind of behavior, but the guy's just a writer.
-Carolyn
Like Daddy always said: if you can't dazzle 'em with brilliance, baffle 'em with bullshit.
and sent it to a publisher he was having a dispute with. Neil Gaiman has a highly amusing anecdote about how the mailroom boy who delivered the box to the publisher got fired (that's not the funny part). The mailroom boy met Neil Gaiman years after this and told him what happened, and Neil had heard Harlan Ellison tell about how he took a handgun out to his garden in his bathrobe to shoot the gopher, but nobody would believe him until Neil told the rest.
O~ Him that studies revenge keeps his own wounds green. -- Francis Bacon
:)
Is he still alive? I can't recall even an anthology under his name for quite a while. The last I read about him, he was living in a tent in protest of something or other at a sci-fi convention. I always enjoyed his stories. The question is, fame or money? If his stories get into public domain, there is a better chance people will be enjoying them long after the last physical book gets remaindered into oblivion.
Goddamned kids! Get off my lawn!
Yes, and when we're talking about war, we're really talking about peace. That is very clever. Actually despite what you obviously think, it is not clever to make ambiguous that which someone more clever than you has already disambiguated. You can always argue that things are all the same, that is why it is more interesting to talk about how things are different.
You obviously don't understand the distinction between p2p and client-server architecture.
The Internet itself is made up of many servers which one could call peers. That doesn't mean when I download something from a website I am participating in a p2p network. When someone (who knows what they are talking about) says p2p they mean that the clients are both a peer and a server. When I connect to usenet via my ISP, I am not giving bandwidth to other users on Usenet or giving them access to files on my hard drive, and I don't typically have the option to, therefore it isn't p2p. Sure I could upload my files to the server where user's could access "my files," but that those copies of the files aren't on my computer anymore, therefore what other users actually have access to are the server's files.
Holy urban legends.
Kurt Vonnegut did not write that speech either.
Man, that stupid Vonnegut speech urban legend will not die!
In the absence of the DMCA safe harbor provision Ellison would not have had to send a takedown notice. He could have sued AOL for copyright infringement with no notice and won by merely proving that they posted his work. The RIAA would love it. Is that what you want?
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Some of them shoot back.
Well, when I looked at this recent article on electronic copyrights in the most recent RISKS digest I was reminded of the Ellison story.
The author of this article objected because the stolen version was corrupted, and, in his opinion, inferior, to his original. And additionally because his original was unattributed.
"Repent, Harlequin!" Said the Ticktockman
." and in their home that night was the sound of tearing paper and fear, and the stink of madness went up the flue and there was nothing, absolutely nothing they could do about it.
by Harlan Ellison
He had fired off the firecracker rockets that said: I will attend the 115th annual International Medical Association Invocation at 8:00 PM precisely. I do hope you will all be able to join me.
The words had burned in the sky, and of course the authorities were there, lying in wait for him. They assumed, naturally, that he would be late. He arrived twenty minutes early, while they were setting up the spiderwebs to trap and hold him. Blowing a large bullhorn, he frightened and unnerved them so, their own moisturized encirclement webs sucked closed, and they were hauled up, kicking and shrieking, high above the amphitheater's floor. The Harlequin laughed and laughed, and apologized profusely. The physicians, gathered in solemn conclave, roared with laughter, and accepted the Harlequin's apologies with exaggerated bowing and posturing, and a merry time was had by all, who thought the Harlequin was a regular foofaraw in fancy pants; all, that is, but the authorities, who had been sent out by the office of the Ticktockman; they hung there like so much dockside cargo, hauled up above the floor of the amphitheater in a most unseemly fashion.
(In another part of the same city where the Harlequin carried on his "activities," totally unrelated in every way to what concerns us here, save that it illustrates the Ticktockman's power and import, a man named Marshall Delahanty received his turn-off notice from the Ticktockman's office. His wife received the notification from the gray-suited minee who delivered it, with the traditional "look of sorrow" plastered hideously across his face. She knew what it was, even without unsealing it. It was a billet-doux of immediate recognition to everyone these days. She gasped, and held it as though it were a glass slide tinged with botulism, and prayed it was not for her. Let it be for Marsh, she thought, brutally, realistically, or one of the kids, but not for me, please dear God, not for me. And then she opened it, and it was for Marsh, and she was at one and the same time horrified and relieved. The next trooper in the line had caught the bullet. "Marshall," she screamed, "Marshall! Termination, Marshall! OhmiGod, Marshall, whattl we do, whattl we do, Marshall omigodmarshall . .
(But Marshall Delahanty tried to run. And early the next day, when turn-off time came, he was deep in the Canadian forest two hundred miles away, and the office of the Ticktockman blanked his cardioplate, and Marshall Delahanty keeled over, running, and his heart stopped, and the blood dried up on its way to his brain, and he was dead that's all. One light went out on the sector map in the office of the Master Timekeeper, while notification was entered for fax reproduction, and Georgette Delahanty's name was entered on the dole roles till she could remarry. Which is the end of the footnote, and all the point that need be made, except don't laugh, because that is what would happen to the Harlequin if ever the Ticktockman found out his real name. It isn't funny. )
The shopping level of the city was thronged with the Thursday-colors of the buyers. Women in canary yellow chitons and men in pseudo-Tyrolean outfits that were jade and leather and fit very tightly, save for the balloon pants.
When the Harlequin appeared on the still-being-constructed shell of the new Efficiency Shopping Center, his bullhorn to his elfishly-laughing lips, everyone pointed and stared, and he berated them:
"Why let them order you about? Why let them tell you to hurry and scurry like ants or maggots? Take your time! Saunter a while! Enjoy the sunshine, enjoy the breeze, let life carry you at your own pace! Don't be slaves of time, it's a helluva way to die, slowly, by degrees . . . down with the Ticktockman!"
Who's the nut? most of t
COUNT THE CLOCK
.
THAT TELLS THE TIME
By Harlan Ellison
When I do count the clock that tells the time,
And see the brave day sunk in hideous night;
When I behold the violet past prime,
And sable curls all silver'd o'er with white;
When lofty trees I see barren of leaves
Which erst from heat did canopy the herd,
And summer's green all girded up in sheaves
Borne on the bier with white and bristly beard;
Then of the beauty do I question make,
That thou among the wastes of time must go . .
William Shakespeare,
The Xllth Sonnet
Waking in the cool and cloudy absolute dead middle of a Saturday afternoon one day, Ian Ross felt lost and vaguely frightened. Lying there in his bed, he was disoriented, and it took
him a moment to remember when it was and where he was. Where he was: in the bed where he had awakened every day of his 35-year-old life. When it was: the Saturday he had resolved to spend doing something. But as he lay there he realized he had come to life in the early hours just after dawn, it had looked as though it would rain, the sky seen through the high French windows, and he had turned over and gone back to sleep. Now the clock-radio on the bedside table told him it was the absolute dead middle of the afternoon; and the world outside his windows was cool and cloudy. "Where does the time go?" he said.
He was alone, as always: there was no one to hear him or to answer. So he continued lying there, wasting time, feeling vaguely frightened. As though something important were passing him by.
A fly buzzed him,, circled, buzzed him again. It had been annoying him for some time. He tried to ignore the intruder and stared off across Loch Tummel to the amazing flesh tones of the October trees, preparing themselves for Winter's disingenuous attentions and the utter absence of tourism. The silver birches were already a blazing gold, the larches and ash trees still blending off from green to rust; in a few weeks the Norway spruces and the other conifers would darken until they seemed mere shadows against the, slate sky.
Perthshire was most beautiful at this time of year. He had taken the time to learn to pronounce the names-Schiehallion, Killiecrankie,
Pitlochry, Aberfeldy-and had come here to sit. The dream. The one he had always held: silent, close to him, unspoken, in his idle thoughts. The dream of going to Scotland. For what reason he could not say. But this was the place that had always called, and he had come.
For the first time in his life, Ian Ross had done something. Thirty-seven years old, rooted to a tiny apartment in Chicago, virtually friendless, working five days a week at a drafting table in a firm of industrial designers, watching television till sign-off, tidying the two and a half rooms till every picture hung from the walls in perfect true with the junctures of walls and ceiling, entering each checkbook notation in the little ledger with a fine-point ink pen, unable to remember what had happened last Thursday that made it different from last Wednesday, seeing himself reflected in the window of the cafeteria slowly eating the $2.95 Christmas Dinner Special, a solitary man, somehow never making the change of the seasons save to understand only by his skin that it was warmer or colder, never tasting joy because he could never remember having been told what it was, reading books about things and subject matter, topics not people, because he knew so few people and knew none of them, drawing straight lines, feeling deserted but never knowing where to put his hands to relieve that feeling: a transient man, passing down the same streets every day and perceiving only dimly that there were streets beyond those streets, drinking water and apple
juice, and water, replying when he was addressed directly, looking around sometimes when he was addressed to see if it was, in fact, himself to whom the speaker was speaking, buying g
Harlan Ellison, in an interview with Maggie Thompson, printed in Sci-Fi Universe (June 1995):
I have no love for Paramount. Paramount is not a studio that I think is steeped in ethical behavior...The fanatics who feed off that whole money-making Trek franchise, who live it and breathe it, who don't merely watch the show, are to me the most pathetic creatures in the world; suckers being mulcted by venal Paramount, publishers of garbage novels with stock characters, hustlers and inheritors of Roddenberry's scam, and cult-like gurus who prey on Star Trek obsessives and Trekkies and Trekkers and Treksters and Trekoids and Treknoids and Trekiloids and Diploids and Dippies. They're like those sad couch potatoes who worship at the TV altars of The 700 Club and Home Shopping Channel, which are one and the same, whether the viewers are being fleeced in the name of Consumerism or Jesus. They are, in my view, absolutely the most pathetic creatures in the world. I mean, they talk about a TV series as if it were real life. They wear damned Star Trek uniforms. People change their names so they have the same names as the characters. Doesn't anyone else see the resemblance this all bears to the Branch Davidians or the Jonestown cults?
The case was a bit rediculous. The elements were supposedly taken from "Demon with a Glass Hand" and "Soldier". Demon dealt with a robot going into the past and Soldier dealt with two fighters from the future going into the past. I believe the term "Time Mirror" was used in both "Demon" and "Terminator" and it threw the case his way. I normally side with the original artist but this way insane. No portions of either story were used. He should have lost. "The Truman Show" was one of the most blatant rip-offs in the history of film and no case was even brought. Paul Bartel did two verions of something called "Secret Cinema". One in 1968 and he did a new version for Amazing Stories, probably where the writer got the idea. The original version is a bit obscure. A number of people made the comparison but no acknowledgement was made. Sadly Paul has died since and never got the recognition he deserved. I wouldn't fault Harlan's zero tolerance policy if the lawsuits weren't driven more by ego than substance. He has literally stated that he is the "only" writer with original ideas. Apparently he's claiming credit for works done even before he was born. H.G Wells was the first science fiction writer to use the concept of time travel. I didn't notice his estate suing Harlan over his use of Well's concepts.
I'm not a reader. But "I have no mouth and cannot scream" was totally fucking chilling. It stuck in my head longer than seeing Requiem For A Dream ( a close call ).
-Clio
Karma: Bad (mostly from not giving a fuck)
Blog: http://clintjcl.wordpress.com