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."
Its Usenet? (Score:3, Interesting)
Dear ghod... (Score:5, Interesting)
I've never heard nor seen USENET refered to as a "peer to peer" file sharing network.
Or a hyphenation of "news-group".
Seems strange to trust email so much... (Score:5, Interesting)
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?
Re:Its Usenet? (Score:2, Interesting)
They can if its their users who posted it and if the material is being hosted on servers they own.
Usenet Precident (Score:2, Interesting)
It is possible that this judgment could some way be construed to hold all ISPs who give subscribers access to USEnet liable for copyright infringement?
complaining old man... (Score:5, Interesting)
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!".
A new public funding model for artists... (Score:4, Interesting)
Re:Harlan Ellison Fights for Creator's Rights! (Score:4, Interesting)
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!
What type of mail server do they use? (Score:3, Interesting)
Re:It's about the future of USENET (Score:4, Interesting)
Gosh...an ISP might decide to not carry alt.binaries groups whose main purpose is to distribute copyrighted material without permission?
This is suppose to bother me how?
Re:It's about the future of USENET (Score:3, Interesting)
No, it is not. It's about upholding existing laws, whether or not any computer is involved at all. In this case they happen to figure prominently.
"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."
Harlan thinks no such thing. What Harlan thinks is that the law gives him (or his lawyer) a way to notify people with infringed material of his on their server that it's there, and ask them to remove it, and expect them to either do so, or give a good reason why not, in a reasonable amount of time. And he's right. That's the law, that's what he expected, and that's what AOL did not do.
Although I haven't spoken to him personally, I can be pretty confident that this is what Harlan thinks, because I know it's what his attorneys think, and I work for them. I was a material witness for them and am listed as expert witness, should it come to that.
"What we need to worry about is what the precedent means."
What it means, hopefully, is that the net will be held to exactly the same laws as the rest of the world, not more or less. Too many times real complaints get ignored by the law because the law doesn't understand the net well enough. Too often congresscritters out for good PR (or a pile of cash) bring out laws that demonize on the net what's treated less important off. This is a clear cut issue which happens to involve the net, but in which the actual issue does not necessarily. If some goofball "publisher" were to reprint his work on paper without authorization, and didn't respond reasonably to complaints sent to the contact person listed at LoC (assuming one was), they'd be in exactly the same situation as AOL. The net is not part of the issue, because this appeal result states that the DMCA does NOT apply.
The Other Reason (Score:3, Interesting)
The problem is that although the publisher has rights to reprint the e-book, the copyright holder is still responsible for the work, and for seeing it isn't published in like form outside the contract. If the author went to someone else and had it done, they'd be liable. However, even if someone else does it without permission, the copyright holder is still responsible and liable. They must act is a reasonable manner to reverse that. Failure to do so could result in loss of the contract, demands for repayment of the money already paid, sued for damages for inability of the publisher to now make money on the e-book, etc.
Very few authors have the knowledge guts, money, and ornery it takes to track down (or have tracked down) the people doing the pirating and take action. Harlan does. After seeing how hard it has been for someone like him with a team full of intellectual property and computer specialists to protect his own work, it becomes obvious how hard a lesser known (and paid) author would have to work, and what their chances of success would be.
Has any publisher ever tried this yet? No.
Are any ever likely to? Not anymore.