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Harlan Ellison vs. AOL Judgment Reversed
Robotech_Master writes "An appeals court has issued a decision reversing the summary judgment of a lower court that AOL qualified as a "safe harbor" under the DMCA. At issue is the fact that Ellison sent his notification of copyright violation to an email address at AOL, which AOL never received because the abuse submission address had been changed." The complete decision is available here as a PDF file; read below for an excerpt.
"AOL changed its contact e-mail address from "copyright@aol.com" to "aolcopyright@aol.com" in the fall of 1999, but waited until April 2000 to register the change with the U.S. Copyright Office. Moreover, AOL failed to configure the old e-mail address so that it would either forward messages to the new address or return new messages to their senders. In the meantime, complaints such as Ellison's went unheeded, and complainants were not notified that their messages had not been delivered. Furthermore, there is evidence in the record suggesting that a phone call from AOL subscriber John J. Miller to AOL should have put AOL on notice of the infringing activity on the particular USENET group at issue in this case, "alt.binaries.e-book." Miller contacted AOL to report the existence of unauthorized copies of works by various authors. Because there is evidence indicating that AOL changed its e-mail address in an unreasonable manner and that AOL should have been on notice of infringing activity we conclude that a reasonable trier of fact could find that AOL had reason to know of potentially infringing activity occurring within its USENET network."
How about this: Harlan Ellison Can Sue AOL Under DMCA
One line blog. I hear that they're called Twitters now.
Usenet is a global relay system, but that means every Usenet server ends up storing and relaying everything posted to it. So, to effectively get this e-book off of usenet the copyright owner would have to send a DMCA takedown notice to every Usenet server operator. However, hitting AOL's Usenet server to either cancel the offending post or drop the whole group takes the book out of view of the AOL-using population, and that's a pretty big chunk of people in one hit.
Harlan Ellison's webpage:
From his NEWS page he's been on a campaign to Kick Internet Piracy.
According to this site, he's been fighting to prevent unauthorized posting of books/creating work on the intarweb without the authors consent...he believes AOL was partly responsible for his works being posted.
TO PROTECT WRITERS' CREATIVE PROPERTIES.
WE FILED A LAWSUIT AGAINST THE ABOVE PARTIES TO STOP THEM FROM POSTING MY WORKS ON THE INTERNET WITHOUT PERMISSION. THIS IS COPYRIGHT INFRINGEMENT. RAMPANT. OUT OF CONTROL. PANDEMIC.
What I find surprising is that the lower court sided WITH AOL in what looks to be a one sided case in favor of Ellison. How can the lower court support the DMCA and still side with an evil corporation...are they that corrupt now? Do we need federal courts to provide simple justice to the common man now?
An Indian-American Hindu committed to non-violent thought/speech/action alarmed by the global explosion of radical Islam
Well, you can read up pretty easily by just googling on "Harlan Ellison copyright binaries". The short form is that Ellison discovered some of his works were being posted to an alt.binaries group and got ticked off in his own uniquely Ellisonian ranting, raving, frothing-at-the-mouth way. AOL requested and received a summary judgment because, "Hey, we're complying with the DMCA, therefore we're not liable."
This appeal decision is basically a higher court saying, "Oh, no you're not in full compliance...not only did you change the email address without telling anyone, someone had already told you about it when your email address worked. Let's send this through that lower court one more time."
IANAL and all that, of course.
Editor Emeritus and Senior Writer, TeleRead.org
Then again, how many people who know how to get binaries off USENET use AOL?
If a job's not worth doing, it's not worth doing right.
Completely and utterly false. This is the lie that Gene Roddenberry perpetuated, despite repeated pleas from Harlan to knock it the hell off. In Harlan's original script (see Ellison's "City On The Edge Of Forever", ISBN 1565049640, for his complete original teleplay) it was some no-name crewman who was dealing drugs. Gene changed it because we can't have people selling drugs in the perfect Trek universe (that would too....human.) Gene also made many other claims about Harlan's script that were false (e.g., it was too expensive to shoot.)
The complete story is in the previously mentioned book.
Email has always been legally acceptable.. the only issue is whether you can prove in court an email was really delivered or not.
ANY form of communication can constitute a valid contract, some are just harder to prove than others.
A written piece of paper with real original signatures, including several witnesses, is fairly hard to fake. That's why important legal documents have so many signatories.. it's to show that yes, all parties understood the contract, and yes, all parties willingly agreed to it.
In this case, AOL *registered* their email address with the copyright office as a valid way to contact them about copyright issues... that's the point. Had they not done this, they could have insisited on some other method probably.
But they said "this is the address that we will accept complaints on".. then they proceeded to ignore those complaints through mismanagement.
This isn't a core problem with the law, it's a core problem with most people's understanding of the law and the way it's applied in our current legal setting. The law allows for something like $100k penalty or damages per copyright violation if you are found to have done that. However, there are a lot of fair use provisions that protect many uses of copyrighted material from falling under this, i.e. educational use, personal use, backups, etc. To prove you violated copyright in these cases, the court typically looks at four things, among them whether or not you profited from the violation and whether or not you knew you were doing it. I would honestly be very surprised to find that someone who downloaded a single copy of a story from an online site that claimed it was free to download would ever be found guilty of copyright violation and pay any penalties.
That being said, there was a recent disturbance in the force -- the DMCA. That makes it easier for copyright holders to cause problems for people, basically by putting many of the original fair use provisions on hold in a way that hasn't found its way through the courts yet. I'm hoping it will and it will be smashed down, but it hasn't happened yet. This doesn't change the basic premise of the law as I tried to describe it above.
It also put the copyright holders in a position they had never had before where they feel emboldened to go around rattling their swords. The RIAA can threaten people with very expensive lawsuits which, even if those people won (which they probably would given a fair shake), they would have to pay craploads of money defending themselves. Estimates of copyright case costs are somewhere around $200,000 per case. In most cases it's way cheaper just to pay the fine unless you can find some kind soul to protect you for the eventual win. The other downside is that the person sued for copyright violation doesn't come out ahead ever even if they win. At their most lucky, they could win court expenses, but that's not even a guarantee. So you won your case, but you're still out $200k. And that's how these big companies can pull it off. It has nothing to do with the law about copyright, which was never meant to be applied in these cases anyway.