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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."
In order to get protection from being liable for the actions of users under the DMCA, any ISP must register contact information, and then inform their user that they either have to pull the allegedly offending content or the ISP will pull it for them.
Basically, the accusation is that AOL stopped checking the address they had on file at the copyright office, and therefore has lost its protections in any case that was submitted to that address during the unchecked timeframe.
The DMCA usually protects the mega-ISP from being responsible for the copyright violations of its users when it posts user-submitted content without screening it.
However, in order to qualify for that protection, the ISP has to register a contact point with the Copyright Office for all complaints to be sent, and must respond to all properly formatted requests sent to that contact point. It turns out this request to kill a Usenet posting from AOL's servers got lost because the copyright owner sent it to the registered address, but it turns out nobody was reading it since they had established a new address and didn't change their registration.
Therefore, the plantiff followed the law correctly, and AOL missed their chance to escape punishment by letting the time run out. Therefore, the safe harbor clause of the DMCA doesn't apply here, and AOL's going to be open to liablity here.
The core problem is that the law allows for ridiculously high monetary penalties for violating a copyright. It seems to have been written to deter those who would make millions off bootlegged distribution. But it's being applied to people who violated copyright for no financial gain, and typically they weren't even aware they were sharing files (they only thought they were downloading for themselves).
I mean, imagine that a law was passed to penalize big businesses from dumping garbage in rivers, and it would cost them $100,000 per incident. But since "incident" was so vaguely defined, even dropping a gum wrapper off a canoe would mean you violated the law. So the gov't could sue you for $100,000, but they offer to settle for $3,000. A lawyer would cost you $3,000 anyway, so what the hell do you do? You're damned if you do and damned if you don't.
I think the best that could come out of this is that the law will be declared unconstitutional on the basis of "penalty doesn't fit the crime" (via cruel/unusual punishment). If the RIAA successfully prosecuted everyone they've contacted for one song each (over 2000 by my count so far?) and got the maximum penalty of $30,000, they would have been awarded $60,000,000 dollars! WTF? Were they really damaged $60,000,000 by the sharing of 2000 songs? Those 2,000 people could have been sharing the same single song to at least 10 people, so even if the RIAA lost $20 worth of missed-album purchases, they'd still be only be $40,000 in the hole. And that's not even considering that the record companies pocket just a percentage of each album's sticker price.
So I'm a pervert. Welcome to the Internet.
Well, nothing's set in stone yet. The higher court just said that the lower court didn't cover all it's bases correctly, and needs to try again.
That said, you are liable if you distribute copyrighted works (that aren't yours and you don't have rights to distribute) and do not fall under the safe harbor clauses. This decision just says that AOL may have not completed all the paperwork correctly to fall under the safe harbor clause.
Moral: Do your paperwork correctly.
'Sensible' is a curse word.
Yea, all of a sudden anything having to do with "illegal" content is immediately labeled "peer to peer."
- It's not the Macs I hate. It's Digg users. -
And networks like it.
Harlan thinks of some turkey posts his book on USENET, he should then be able to attack all the zillions of people running a USENET server.
In his first round, he didn't do well, but he did have this one technicality -- AOL didn't handle their complaint address properly. And AOL getting dinged for this is fine. What we need to worry about is what the precedent means.
I mean, we've all had email go astray before, had servers go down, had mail drop on the floor. (Happens daily in the world of overactive spam filters.)
This might mean that some sites will decide there is too much legal risk in hosting content or usenet servers.
This part of the DMCA (little relation to the circumvention parts) was meant to make it easier to be an ISP, though at the cost of making them obey every takedown without requiring proof in some cases.
Has it been over a year since you last donated to the Electronic Frontier Foundation
I've never heard nor seen USENET refered to as a "peer to peer" file sharing network.
Given a reasonably broad definition of "peer to peer", I'd say it's a reasonable description (if a politically loaded one at the moment) of how Usenet servers treat each other. It's a little more complicated, because each peer then serves many actual clients, and typically every server has a full copy of the content in question (i.e. it's not "on demand" as are most peer to peer systems seem to be). Still, the end result is something that's a lot closer to peer-to-peer than client-server.
SO YOU'RE GOING TO DIE: The Comic for Dealing with Death
It's either that or "terrorist". Take your pick :-)
What?
This definately scares me as a systems admin. Now if a mail server takes a dump (up to and including unavoidable acts of god) before someone is able to read that all-important email, they're now legally liable?
This is fscking nuts. Email is not a reliable means of delivering information. It's great when it works, but there's too many things that can throw a wrench in the works. Registered mail has none of these problems, which is why it's historically been used.
BTW, send me an email, and my mail server doesn't keep a log of what messages it received. It logs what spams were dropped, but that's it. What the hell would they do then? Because it wasn't dropped, therefore it was received?
Bah. I can just see a bunch of CEOs getting on the email bandwagon. "Registered Mail costs are eating our frivilous lawsuit budgets alive! Email is free!"
THEIR WORK HAS BEEN THROWN ONTO THE WEB BY THESE SMARTASS VANDALS WHO FIND IT AN IMPOSITION TO HAVE TO PAY FOR THE GOODS
You know what? I was a teenager from a poor family. No father and an overworked mother going to school and holding down a full-time job at the same time bringing in barely minimum wage. No child-support. Living with her parents (our grandparents).
My main exposure to good books was online, through Project Gutenberg and various shared copies of e-books (fair use?). I had never even HEARD of Ellison until I read a copy of one of his books online.
I find spending $20 on a CD to be ludicrous and criminal. But you know what else I find criminal? Spending $20, $30, $40 or even $50 for a book of fiction. Christ, it's a couple hundred half-sheets of paper glued and bound into a set of thick cardboard covers for fucks's sake.
It's cheaper to get full platinum digital cable with every movie channel and HBO and all the channels your cable provider offers each month than to afford a book per week reading habit. Books are fucking criminally expensive and I can't blame people for sharing them.
People like Harlan not only want people to not share ebooks, but he doesn't want them to share real physical books either. They don't like libraries, they don't like used book stores. They don't like auctions for used books. They don't even want you to give a copy of a book to a friend when you're done reading it. They want every person who ever reads their work to have to pay for it all over again.
So excuse me if I don't cry you a fucking river, you pompous prick. And excuse the fuck out of me if I don't send you a check for your stupid "kick internet piracy" bullshit.