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."

Comments

Absurd

[damitbill]

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.

Re:Absurd

[damitbill]

I've run a NNTP server before and with (at that time) 10,000+ newsgroups and there was no way I could know what was in them all. If we have to police them all or respond to everyone who complained about them it would shut them all down. It would be quite impossible to censor that many groups, just note the p0rn types out there under existing laws. He is going after AOL because it's a big target. And I do agree he is within his rights to ask that they be removed, it is his property. But Mr. Ellison has been a zealot in 'protecting' his property and I find that distasteful. Not wrong mind you, just something I find unagreeable.

All Usenet would be vulnerable...

[Ioldanach]

There are two aspects to this case. First, he contacted two companies running Usenet servers via e-mail. AOL didn't respond, and says they didn't get it, thus they didn't remove the files from their servers. That's what the lawsuit is really about. Personally, I think if the case comes to this point, the testimony will bear out exactly what happened. He may have sent to the wrong e-mail, or it got lost among the spam. If you want something done, legally, send a piece of paper, not an e-mail.

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.

Re:Pray the jury is sensible.

[JabberWokky]

What's the matter, Harlan? Not enough money lining your pockets from your successful writing/consulting/speaking career?

No, it's just that Harlan is a freaking lunatic. I have been screamed at by the man not once, not twice, but three times in my life (so far). The guy goes into screaming fits regularly. I have also seen him lift a barstool to clock a guy at a bar inside a hotel lobby. He threw a fit because a group of us were making too much noise as he was giving an interview... by the hotel elevators. And then he tried to throw me out of the filk room when it was reserved, as I happened to be the first one there setting up for everybody. Again, another "interview", which was far more important than the use of the room by a dozen people who had reserved it on the schedual months ago.

The guy is the closest match to the cartoon definition of meglomania I've ever seen. He's a parody of a egotistical jerk. If he wins this case, I would not be surprised if he then proceeded to sue every other ISP that has a usenet server... and be cocksure he should win.

If you want a longer version of these ancedotes, I've posted about him on Slashdot before. He's an amazing guy. Good writer, but I think if I had to sit next to him in a plane, one or both of us would be stepping outside ten minutes after takeoff, likely with a firm kick to the rear.

--
Evan

A prolificly ironic writer...

[no longer myself]

"Like the wind crying endlessly through the universe, Time carries away the names and the deeds of conquerors and commoners alike. And all that we are, all that remains, is in the memories of those who cared we came this way for a brief moment."
Harlan Ellison (1934 - ), "Paladin of the Lost Hour"

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...

So what could AOL have done?

[JuggleGeek]

Assuming that AOL actually received his email, what would they have done? By then, the usenet posts had been distributed to lots of servers. The RFC's for newsgroups will explain about how you can "cancel" a message. But many servers do not accept/process cancels. This is because too many groups have been attacked by cancel-bots which go through trying to cancel every message (or something similar). Cancels are easy to forge, just like email "from" lines are easy to forge.

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'd believe it

[Unknown Kadath]

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

Harlan shot a gopher in the head...

[jonskerr]

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.