Harlan Ellison vs. AOL Judgment Reversed 253
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."
Wow (Score:1, Insightful)
Its the law (Score:4, Insightful)
Looks like actual notice to me.
Summary. (Score:0, Insightful)
Shorter summary:
If it needs to be done, email ain't the mode of communication you want.
Re:Unfamiliar... (Score:5, Insightful)
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.
Re:Just settle (Score:2, Insightful)
Why doesn't AOL just settle with Ellison, maybe offer him like 5,000 free hours instead of the normal 2,500?
* Hours must be used within the 45 day trial period.
(Hint: how many hours in 45 days?)
That's right, but it's not in time. You lose. (Score:5, Insightful)
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.
Re:Summary. (Score:4, Insightful)
AOL's got no hope of winning this case now.
Re:Wow (Score:5, Insightful)
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.
Re:Usenet Precident (Score:5, Insightful)
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.
Re:Harlan Ellison is a nut case. (Score:3, Insightful)
Neither of which should have any relevance to the case, of course. Nut case or not, good writer or not, he should have the same rights - no more, no less - as anyone else. Likewise, AOL should have the same rights as any other ISP.
Re:Dear ghod... (Score:5, Insightful)
AOL vs the DMCA (Score:4, Insightful)
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
It's about the future of USENET (Score:5, Insightful)
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.
Re:Dear ghod... (Score:5, Insightful)
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.
Phone call is useless with any large organisation (Score:3, Insightful)
In any large (even medium) organisation, there is no guarantee that your complaint has been heard *by the right person*. That's like serving verbal notice on McDonalds by talking to the guy who gives you your fries.
Email leaves a permanent record. It's a much better medium than the phone for this sort of thing, and AOL are meant to be an internet company. Normally, I would say registered mail - but in this case, it appears that AOL registered this email specifically, in accordance with the law, and then changed it/neglected to check the old one.
Re:Dear ghod... (Score:5, Insightful)
Re:Its the law (Score:4, Insightful)
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!"
Fuck you, Harlan. (Score:5, Insightful)
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.
Re:Nothing too drastic. (Score:2, Insightful)
Re:Fuck you, Harlan. (Score:4, Insightful)
That $100 bill in your pocket -- it's just a blend of linen and cotton, for fuck's sake. But you'd probably get upset with me if I relieved you of it, even if I paid for you for the value of it's constituent components (probably just a few cents) first ...
Re:Its the law (Score:3, Insightful)
relying on e-mail was his mistake.
In most cases I would probably agree with you, but in the case of America On-Line, an internet service provider, I think it is perfectly reasonable to expect them to have the technical nous to be able to process and audit messages which are sitting on their mail servers.
Since When is Stealing OK? (Score:1, Insightful)
Stealing is wrong, OK? Always. It's not right when you find it convenient. It's not right when you think someone's charging too much. If you don't like it, that's just too bad, Chuckles. How would you like it if Harlan broke into your house in the middle of the night and took your computer?
I have news for all the 13-year-old buttheads out there: the world does not revolve around you, You can't get everything you want, and life,as they say, is a b**ch. Get over it.
Harlan, good luck to you.
The Library is Different (Score:1, Insightful)
So, you're right. Just go to the Library. Great suggestion, one I didn't think of
Re:FUCK THE BASTARDS! (Score:3, Insightful)
I'm with you. This "life + 70" shit is often justified as a way to "bequeath the business to one's family", but that's a load of crap. If a man is a carpenter and wants to leave his carpentry business to his son, he better teach the kid carpentry. The business of an author is writing, so it satnds to reason that the only way to pass on such a business is to teach your kids to write, no? The carpenters kid can't go around to houses his dad built and demand payment for his dad's work. Author's descendents shouldn't get to either. My favorite line from crackpot Ellison's ALL CAPS LETTER is the one where he claims "A WRITER'S WORK IS NOT INFORMATION: IT IS OUR CREATIVE PROPERTY, OUR LIVELIHOOD AND OUR FAMILIES' ANNUITY." Bullshit. If a writer wants to leave his family an annuity, he should have to set up a trust fund with money like the rest of us slobs.
Re:The Library is Different (Score:3, Insightful)
They can when you rip all the pages out and pass them along a line of people
However, I don't see why simultaneity really matters: libraries can still rent out the same book to hundreds of people before it's replaced. Whether they're reading it serially or in parallel is irrelevant, they're still not buying the book.
Every book in a library 'costs' the author a sizable amount of money, unless they're so crap that no-one would want to read them: if libraries hadn't existed for centuries and were invented today, authors would be demanding laws against them.
Re:Its the law (Score:3, Insightful)
If you send an official communication to someone, and don't get a reply within a day or so, then send registered mail, or a phone call.