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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."
Looks like actual notice to me.
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Try http://dotcrimeManifesto.com/
Slashlaw: The Finest in IANAL Speculation
It's not stupid. It's advanced.
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.
I would use that high-speed technology to send The American Choppers kid (you know the geeky one) back in time to kill Harlan Ellison. But in an ironic twist he will fall in love with him and instead be forced to let him die in a freak truck accident.
I've never heard nor seen USENET refered to as a "peer to peer" file sharing network.
Or a hyphenation of "news-group".
-- benton.
Why doesn't AOL just settle with Ellison, maybe offer him like 5,000 free hours instead of the normal 2,500?
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.
Do you think AOL is an ISP?
Get real!
They are a CD-Company, always sending out these so called AOL-CDs.
Grundgesetz * 23. Mai 1949 - 30. November 2007 - http://www.vorratsdatenspeicherung.de/
Skimming the papers, it sounds like email is the legally acceptable way of contacting an ISP about a copyright issue... which seems kind of surprising. I mean, when you sue someone, they generally have to be notified either by certified mail or in person. If the U.S. Postal Service can't be trusted to deliver a supena, is it reasonable to trust email with a takedown notice and punish the recipeient for not acting?
I have blog like everyone else
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
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.
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.
If an ISP has registered an e-mail address for a copyright contact, then an e-mail to that address that doesn't bounce counts as putting them on notice. And, as the other poster point out, there's also an ignored phone call that's also on the record.
AOL's got no hope of winning this case now.
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.
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.
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.
I see the problem: His original email to AOL was probably ALLCAPS, so their spam-filter ate it.
One line blog. I hear that they're called Twitters now.
Well since AOL apparently bothced their get-out-of-jail feee card I wonder if they are going to spend some of that cash pile of theirs to put a big dent in the DMCA to get of the hook.
Or if the AOL part will just bend over and take it so that the Time Warner part can keep their beloved DMCA intact.
/greger
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
While I think AOL is in the wrong here and should get punched in the face for their stupid actions, I find it hard to have sympathy for this Ellison guy. From the looks of it he found copies of his books on usenet. Does he really believe any significant number of people really wants to read books on a computer?
Paperbacks are still relatively cheap and available. I much prefer an actual printed book for $7 to having to scrunch up in front of a computer and strain my eyes for several hours to read a book. Sure I can read it on a teeny tiny PDA screen, but that sucks too. Books are probbably the _least_ susceptible to copyright violation, and have withstood the onslaught of copy machines for decades. Printed books are simply a better technology than electronic books, and probbably will be true for the forseeable future. While Ellison certainly has a right to complain about his works being posted on usenet, it seems more akin to some old man yelling at kids to "get off my lawn!".
AccountKiller
I'm not familiar with this author. Can somebody tell me where I can download some of his works?
You want the truthiness? You can't handle the truthiness!
1. Spam usenet under false identity. 2. Complain to copyright office. 3. Repeat 1 and 2 as often as necessary to get violations by major ISP's. 4. Sue. This only works if the ISP's are actually held responsible.
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.
DO NOT, FOR AN INSTANT, BUY INTO THE CULTURAL MYTHOLOGY THAT ALL ARTISTS ARE RICH. A FEW ARE, BUT MOST HAVE A HARD ROW TO HOE JUST SUBSISTING, HOLDING DOWN SECOND JOBS.
How is this possible, Harlan? How much is the average fiction book these days? $20? $30? How much does it cost to produce each copy? I mean, it's a bunch of flimsy paper with black ink on it, surrounded by a thicker set of paper or some sort of cardboard cover. If you can't survive on the markup between cost and sales on an item like that - at a price like that - talk to your publisher, not us!
Further, you're lucky that you're even being read by people and that you are being published. Do you know how many people in the world write excellent material but aren't considered by the publishing giants these days? It's harder to even get an agent today than it was to get a *publisher* three decades ago. The average author who *is* published only makes an average of $8,000 to $10,000 per year from it.
I have been writing novels my entire life and am dying to be published. I give out my material for free. When someone shares my writing with another person - or whole groups of people, I don't freak out and demaned $20 from each and every person that read it. I'm just appreciative that they like my work. That they appreciate my art. That it has an audience. Remember. It's ART.
Also, if you can't make a living, then I suggest you contact Cory Doctorow of boingboing.net. He has written two very popular best-selling books and made a lot of money from them. BUT HE ALSO GIVES THE FULL BOOKS AWAY ONLINE FOR FREE. Imagine that!
I heard that Ellison's original script had some low-level Enterprise crew doing drugs which leads to this time-travel incident, but the Hollywood suits took that out because the Enterprise crew are all Eagle Scouts and that would never happen in the Star Trek universe, so they rewrote the script to have McCoy accidently inject himself with a dangerous (legit) medication when the Enterprise hits a space-time "air pocket" (you know, one of those things that tosses everyone out of the seats that they are not belted into).
If you write scripts for Hollywood, having someone else do a rewrite for any of a number of pandering reasons is part of the landscape, and as far as making the Enterprise crew Boy Scouts who would never use drugs, whoever is supervising a series has to keep the episodes consistent with a vision or else it turns into Superman Comics where Superman keeps getting more powers in each episode that they have to hit some kind of reset button.
Getting back on topic, Ellison may not be a nut case, but he has a track record of pissing into the wind on matters of principle that turn out to be no-win situations.
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.