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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
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 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.
Actually the "No Sex in the Champain Room" thing came out after the the Sunscreen thing, and quite possible was inspired by it.
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.
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
This is /. Cause doesn't have to follow effect.
:)
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!
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.
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