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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
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.
No, the speech was _given_ by Kurt Vonnegut Jr. It was _written_ by Mary Schmich, a Chicago Tribune columnist.
Are you sure about that?
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.
No, Vonnegut had absolutely positively nothing to do with the Sunscreen essay. Look it up for yourself.
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
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 write a novel. It's not a particularly good novel, but I'm proud of it. I have a copyright on the novel which I do not relinquish or alter, and I publish and sell copies of the novel.
A reader somewhere thinks it's the best novel he's ever read, or at least in his top 100. 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.
A user of the filesharing network downloads the scanned copy of my novel. He too has stolen my right to choose the means and scope of my distribution.
My novel is still there, but I have lost something. See also the Merriam-Webster definition, transitive senses 1b-1d.
Please put this argument to rest. It's used as a particularly moronic crutch by some avid P2P fileswappers, and eclipses the better points that could be made (such as that we should reduce the copyright term in order to promote competition and innovation in content).
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
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.
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.
A user of the filesharing network downloads the scanned copy of my novel. He too has stolen my right to choose the means and scope of my distribution.
Rights can't be stolen, only infringed. If the government censors you unfairly, they haven't stolen your right to free speech (where'd it go?) they've infringed it. Even Merriam-Webster defines infringement this way:
It's used as a particularly moronic crutch by some avid P2P fileswappers [...]
It's also used this way by lawyers and the law, particularly 17 USC Section 501, the part of law that defines exactly what is a violation of the exclusive rights of copyright holder.
Copyright. Violation of a right is infringement, not theft. Repeat early and often. It's the law.
-jdm
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