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June 10, 2004

Harlan and the pirates
Posted by Teresa at 05:42 PM *

AuthorsLawyer.com says that a final settlement has finally been settled in Ellison v. Robertson, et al., a.k.a. Harlan Ellison versus AOL. The story started like this:

In early spring of 2000, famous author Harlan Ellison became aware that his works were being (sloppily) pirated in certain Usenet newsgroups. Two years of litigation later, two of the defendants have settled: the front-line pirate, and the news service that provided the front-line pirate with the opportunity to distribute his piracy. The remaining defendant, America Online, Inc., continues to assert that the Digital Millennium Copyright Act (see Legal Authority on Copyright) prevents Mr. Ellison from obtaining any effective relief for any liability it might otherwise have.
Who won? Good question. The participants are saying things like:
Both AOL and Ellison are pleased this case was able to draw the courts’ and the public’s attention to the issue of online piracy and advance the legal issues relating to copyrights in the digital world.
I suppose.
Comments on Harlan and the pirates:
#1 ::: Julia Jones ::: (view all by) ::: June 10, 2004, 06:24 PM:

I read it three times and still couldn't work out whether Ellison won, AOL won, it was an honorable draw, or they both lost.

#2 ::: Jonathan Vos Post ::: (view all by) ::: June 10, 2004, 06:28 PM:

Dangerous Visions: 15th Anniversary of Tiannamen Square [and Harlan Ellison v AOL]

magicdragon2 2004-06-04 19:19

excerpt from (and, later, comment on):

When World Views Collide: A Study in Imagination and Evolution

by John J. Pierce; Greenwood Press, 1989, pp.113-114

Angry Young Men--and Women
UP AGAINST THE WALL, CAPTAIN FUTURE!

"The Jack I present is the Jack of all of us, of course. The Jack that tells us to stand and watch as Catherine Genovese gets knifed, the Jack that condones Vietnam because we don't care to get involved, the Jack that we need. We are a culture that needs its monsters."

"Puritan New England had its Jonathan Edwards; science fiction has its Harlan Ellison. Ellison (1934-) wears his heart--and his social conscience--on his sleeve. The Ellison who, in 'The Prowler in the City at the Edge of the World' (1967), shows how a near-future society even more morbidly voyeuristic than our own gives Jack the Ripper the kind of public recognition and acclaim denied him in his own Victorian England, is the same Ellison who ends his afterword with: 'That is the message of the story. You are the monsters.'"

"'The Prowler in the City' was Ellison's own contribution to what was meant to be, and became, the most controversial anthology in the history of science fiction: Dangerous Visions (1967). Although Ellison's anthology was a rallying point for what was called the American New Wave, the movement in American sf was never as coherent as the British New Wave under Michael Moorcock. Even though Ellison encouraged relevance and taboo-breaking in both Dangerous Visions and Again, Dangerous Visions (1972), he has never attempted to impose an ideology on sf. Both his anthologies include stories that can hardly be called controversial, and his other projects include Medea: Harlan's World (1985), a created-world symposium-anthology...."

magicdragon2, with all due respect to the brilliant John J. Pierce, believes that Harlan Ellison is a vastly more important figure than stated above.

Harlan, in his landmark lawsuit against AOL, has shed blood in drawing the line between intellectual property of the artist and the corporate behemoth. A scientist and an artist alike own nothing but their work and their reputation.

Harlan is as heroic as the Chinese citizen 15 years ago today -- as I blog this -- who stood in front of the tank in Tiannamen Square.

In the depths of the 21st century, there will either be a free hypersociety of citizens of the galaxy, or mere subjects in an empire of hegemonic transnational media giants who control 90% of all "content."

Who are the monsters? Whom, indeed!

#3 ::: Jonathan Vos Post ::: (view all by) ::: June 10, 2004, 06:34 PM:

And for those who care only about money, the Joint Press Release includes: "As promised, I will be repaying every cent of the monies contributed to the KICK Internet Piracy Fund by writers and readers."

That suggests that AOL paid for Harlan's huge legal bills, enabling him to repay those brave souls who lent/donated to assist him. There is probably a nondisclosure clause prventing us from knowing how much AOL had to pay Harlan and his talented attorneys.

#4 ::: Claude Muncey ::: (view all by) ::: June 10, 2004, 06:36 PM:

Just once, I would like one of the parties to a settlement like this to come out and say:

I am gratified that we have been able to find a constructive settlement to this dispute as it is now clear that I was experiencing the biggest brain fart of my now wasted life when I approved this lawsuit. Simply piling up on a beach all the money and paper wasted and setting it alight would, at least, have provided a pleasant evening.

Or something to that effect.

#5 ::: anon ::: (view all by) ::: June 10, 2004, 06:48 PM:

I just can't see Harlan Ellison settling if he had any hope at all of victory. The DMCA's safe harbor provisions are pretty clear, and I think AOL told Ellison that they would pay for his lawyers if he went away. Ellison, realizing that he would never be able to gloat about a victory, walked away.

#6 ::: Robert L ::: (view all by) ::: June 10, 2004, 06:53 PM:

Hmmm...I feel like there's more more you want to say on the subject, with that "I suppose"--but I'm not familiar enough with the facts of the case to know what exactly. Can you enlarge--or would it be in appropriate given your role as blah blah blah etc.?

#7 ::: Tom Whitmore ::: (view all by) ::: June 10, 2004, 07:36 PM:

Harlan, whom I definitely like as a person and really enjoy spending time with, has been long on rhetoric and short on action many times in his life (see Chris Priest's _The Last Deadloss Visions_ for examples).

If anyone here contributed to his fund and gets money back, would you please post that it has happened? Otherwise, I'm thinking it's 1969 all over again (the St. Louiscon masquerade debacle).

#8 ::: xeger ::: (view all by) ::: June 10, 2004, 07:40 PM:

For my part, I'm deeply concerned about any ruling that threatens the 'common carrier' like status of [most] ISPs. If ISPs are to be held liable for the contents of everything that passes through their networks, it can only reduce the amount of traffic that they're willing to carry, and freeze freedom of expression.

That said, the people that put Ellison's books online (and badly at that) shouldn't see any immunity at all.

#9 ::: C.E. Petit ::: (view all by) ::: June 10, 2004, 07:40 PM:

The inference that we can't say what exactly was in the settlement is correct. We can't. Sorry. I know that Enquiring Minds Want to Know.

As a general rule, when a plaintiff wins on appeal and the matter settles before trial, the appellate decision has frightened (some part of) the defendant. If it's just a matter of ruling on admissibility of some piece of evidence, the case usually gets retried (unless that was THE critical piece of evidence). Our appeal was decided on a matter of law. Further than that I cannot say. At least not here.

#10 ::: Dan Hoey ::: (view all by) ::: June 10, 2004, 07:50 PM:

Am I the only one who mistook authorslawyer for authorslayer?

#11 ::: Tim Cooper ::: (view all by) ::: June 10, 2004, 08:08 PM:

Two years of litigation in a case where the actual damages might possibly have reached the vast height of three digits, and there's any question of who won and lost? It's fairly obvious. The lawyers won, and the taxpayers lost big.

This is the problem with the modern spate of file-sharing litigation: the cost of enforcement -- even the partial cost borne by the government -- is orders of magnitude larger than the damages.

#12 ::: Scorpio ::: (view all by) ::: June 10, 2004, 08:58 PM:

OK, so he will be invisible to those who inhabit the electronic universe. I suspect that Jim Baen has figure out that you catch more flies with honey. At least one of his fairly new writers is doing 35K copies in cloth with online exposure in the Free Library kicking up his sales radically.

Free samples encourage readers to go buy the whole backlist. Bet Card does best when he has sample chapters out there. Ellison has proved that he now belongs to the past.

Scorpio
Eccentricity

#13 ::: Dan Blum ::: (view all by) ::: June 10, 2004, 09:34 PM:
Free samples encourage readers to go buy the whole backlist. Bet Card does best when he has sample chapters out there. Ellison has proved that he now belongs to the past.

It seems to me that there is a difference between an author or publisher making a story or novel that they have written or published available for free online, and some third party doing so without permission.

#14 ::: James J Murray ::: (view all by) ::: June 10, 2004, 11:08 PM:

At the 2002 LA Westercon, Harlan discoursed for an hour or so on the suit, auctioned off a number of items (including dinner that night with him) and signed books with great abandon. Among the stories he told was this:

A couple of days prior to his deposition, his lawyer, M. Christine Valada, got into an elevator with the lead attorney for AOL (aside: Harlan said he was told this particular law firm wouldn't even begin to talk "settlement" until they had billed $1 million in work hours). They chatted briefly, and Ms. Valada said, "I'll see you next Tuesday." Evil Dan (Harlan had a much more evocative name for him, but it is lost to the mists of time) looked quizzical, and Ms. Valada elaborated with, "at the Ellison deposition."

Evil Dan grinned, and replied, "Oh, yes, we're breaking out the thumbscrews for that one!" as she left the elevator.

Come Tuesday, Harlan and Ms. Valada enter the deposition room, populated by the stenographer, the videographer and Evil Dan and 5 or 6 minions (see billing, above). Harlan asks if the proceedings have begun, and with the video camera "rolling," walks up to Evil Dan and asks, "Is it true that last week you told my attorney 'Oh, yes, we're breaking out the thumbscrews for that one!' concerning this deposition?" Evil Dan does the fum-fuh, shucks, jives, and, looking at the recording devices, eventually admits he did so, with a "jes' havin' fun" chuckle.

Harlan holds up his hands, says "I just wanted you to know I brought my thumbs," rotates his hands to extend two more familiar digits and concludes, "and the rest of my fingers."

Given the time, money and tsuris Harlan spent on this, he deserves the thanks of authors everywhere. It should be their choice if their works are online.

#15 ::: Lenora Rose ::: (view all by) ::: June 11, 2004, 12:20 AM:

Scorpio, I think you're mistaking the issue of whether the works are available on the internet with the issue of whether a third party made those works available without permission - whether electronically or on paper.

The reason this was so big a legal case was because the laws regarding the internet are new, half-tried, and complicated. Fun lawyer reasons.

Had the copying been done by photocopier, or hand-cranked press, the case would not have been as big news - but the case would have been just as valid, because the actual wrong done was piracy, illegal copying of works. Which is the same issue it was when the copying was done by hand-cranked press.

#16 ::: Josh Jasper ::: (view all by) ::: June 11, 2004, 12:32 AM:

James J Murray, suing the ISP? How's that going to solve the problem? Did they ignore requests from him to delete the material or stop it from being sent?

#17 ::: mythago ::: (view all by) ::: June 11, 2004, 12:33 AM:

Shame AOL can't hire smarter lawyers. Smack talk about thumbscrews is supposed to be shared with the other attorneys on your side, not opposing counsel.

#18 ::: Larry Brennan ::: (view all by) ::: June 11, 2004, 01:09 AM:

mythago - There's often a bit of collegial banter between even bitterly opposed lawyers. It's part of how the game of lawyering is played, at least among the big boys. After the case is over, they're all still part of the same club.

Ellison getting the jest on the record may have been satisfying, but it probably wasn't the best use of perhaps $1,000 / hour of billing power in the room. (Assuming he was using a top-tier firm).

To join the chorus - asking an ISP to police their customer's content for copyright violations is like asking the phone company to police its customers use of profanity. It's not practical, and (as much as we all probably hate our ISPs and especially hate AO-Hell) it's not their fault. And if we ask ISP's to distinguish between true violations (as was the case here) and fair use, I predict utter chaos, with personal pages being shut down simply for citing the title of a published work.

#19 ::: Doug ::: (view all by) ::: June 11, 2004, 06:42 AM:

So why hasn't there been a thorough reprint of Ellison's work in the last 20 years? Ace ran through pretty much the whole canon in, if memory serves, 82-83, but since then it's been omnibus editions and good luck scouring the second-hand shops. (And those paperbacks didn't stay on the shelves very long either; miss a month of the reprint program, and the chances of making it up were pretty slim.) What gives? Did he not sell? Is he too cranky to work with on that scale? Does he not want his early books in print? Anybody out there know?

#20 ::: BSD ::: (view all by) ::: June 11, 2004, 09:25 AM:

As much as I like Mr. Ellison, the safe harbor provisions of the DMCA (a generally hateful law, but perhaps not so much in this case) are rather clear, and unless AOL knew about and was asked to do something about the piracy, it's really hard to imagine them on the hook. I'll read the opinion, though.

#21 ::: Janet Brennan Croft ::: (view all by) ::: June 11, 2004, 11:06 AM:

Larry Brennan said: "To join the chorus - asking an ISP to police their customer's content for copyright violations is like asking the phone company to police its customers use of profanity. It's not practical, and (as much as we all probably hate our ISPs and especially hate AO-Hell) it's not their fault. And if we ask ISP's to distinguish between true violations (as was the case here) and fair use, I predict utter chaos, with personal pages being shut down simply for citing the title of a published work."

Interesting. I'm struggling with the conundrum of whether libraries can claim the same safe harbor protection. As far as photocopiers in the library go, we can -- we aren't responsible if a patron uses a photocopier to copy Harlan Ellison's latest story. Or even a whole novel that's still in print, which is a clear violation. All we are responsible for is a sign over the copier saying the user is responsible.

But database contracts often try to make us responsible for the end user's use of the product -- say, if a story from IASFM was available on one of our full text magazine databases, and a patron downloaded it and sent it to his 50 closest friends, under many contracts we would be responsible. This seems wrong to me. But it comes down to the fact that database use is governed by contract, not law.

But if it's wrong for a library to be responsible for what an end user does, then by extension, why should a library pay copyright fees for things it borrows on inter-library loan (to get technical, after the first 5 items from one particular journal in one year, we have to pay a fee)? Shouldn't the end user pay these fees instead?

Okay, getting a bit off topic, but I can see a parallel here and it intrigues me. Something interesting to wrestle with.

#22 ::: Kevin J. Maroney ::: (view all by) ::: June 11, 2004, 11:16 AM:

BSD, the whole basis for the case was that AOL was informed that copyrighted materials were sitting on their servers, and that this was brought to their attention. However, the servers involved were news servers, which meant that AOL had no active involvement in putting them there. Harlan's suit basically wanted them to a) take responsibility for policing Usenet or b) give Harlan the tools to cancel any Usenet post he wanted off the AOL servers. (I suppose c) shut down Usenet access for AOL would have been acceptable, too.)

It's quite clear why AOL didn't want to grant these requests, and it's pretty clear to me that they were right not to.

#23 ::: Charlie Stross ::: (view all by) ::: June 11, 2004, 12:05 PM:

Here's the rub (to add to Kevin's post above): if the stories had been posted on AOL's web servers or in chat rooms that AOL explicitly supervised, Ellison would have had a very strong case. But usenet is at heart an automated peer-to-peer network and ISPs have no control over what gets put on it.

I think that he also lost sight of one of the key rules of publishing: the readers are not your enemies. Would he sue libraries for lending books to readers who don't pay him directly for them? Or second-hand bookstores for selling used books without giving him a cut? The answer's clearly no, as the doctrine of first sale applies. I would argue that piracy on usenet, although undesirable and existing on a wider scale, is actually just an extension of this -- and it's not directly harmful to the author's earning prospects. Unlike (say) an actual pirate printing operation making and selling books with his words in them without paying him.

Most of us have personal blind spots and I suspect this whole affair came out of one of his.

#24 ::: C.E. Petit ::: (view all by) ::: June 11, 2004, 12:20 PM:

I realize that I can't necessarily get everyone to agree with us—that's why we had to file a lawsuit—but the objections above are not based on the facts of or law established by this case.

The short version:
AOL stored pirated versions of Harlan's works on its news servers for several weeks. AOL made it impossible to tell AOL of the problem (and not just on its news servers) by changing the e-mail address (required by the DMCA) without telling anybody… or setting up forwarding… or even setting up a bounce. The Ninth Circuit eventually found that AOL's "ostrich technique" (I can't go deeper into sealed evidence) alone—without any of the other facts—could convince a jury that AOL hadn't fulfilled a prerequisite for the DMCA "safe harbor" afforded to ISPs. It's not an immunity statute; it's a limitation on liability. Thus, the matter was sent back for trial, although we settled before trial.

Suffice it to say that the descriptions of the context floating around on the Internet leave a lot to be desired.

The long version:

My webpage on the case, including copies of the legal opinions and our main briefs.

#25 ::: Robert L ::: (view all by) ::: June 11, 2004, 01:53 PM:

Doug: I believe the answer to your questions is: some of the reasons you mention.

#26 ::: julia ::: (view all by) ::: June 11, 2004, 02:07 PM:

whoa.

The DMCA _prevents_ recovery by an injured copyright holder?

Damn.

Why don't they just put in a bill stating that only those worth >x have rights and get it over with?

#27 ::: Mark Gritter ::: (view all by) ::: June 11, 2004, 02:27 PM:

While I think this lawsuit, its overblown rhetoric, and many of its arguments (particularly the original demand that AOL hand over the power to cancel posts at will) are completely bogus, I have to say that it sounds like AOL completely dropped the ball here. The "safe harbor" provisions are not ideal, but at least provide some sort of compromise.

Unfortunately, few ISPs seem to be willing to live up to the entire deal--- including the ability to file a counter-notice and have your materials restored should the complaining party fail to file a lawsuit. But it is perhaps not surprising, given that policing copyright is simply not scalable. The amount of copyrighted material, the uncertain status of any given instance (legally released sample chapter? 'pirated' excerpt?), and the fuzzy boundaries of fair use render it impossible to police violations in the middle. The best we can hope for from our middleboxes (including operators) is that they provide clear responsibility for who has done what--- and even that seems more research task than engineering.

#28 ::: Scorpio ::: (view all by) ::: June 11, 2004, 07:20 PM:

Certainly the choice to put something online should rest with the party who owns the rights. If AOL blocked the pirate site or otherwise cooperated with the holder of copyright, to me that is all they, as a conduit, are really required to do.

Of course, AOL's Terms of Service are such that if I wrote, I'd never allow a word of mine out thru AOL (They claim the right to every word written in chatrooms, etc. They are quite insane, thanks, IMO.) Despite their idiotic claims, I consider AOL and other ISPs to be utilities. Now *that* would be a fun one to take to court ....

I think I was more responding to the antedeluvian notion that electronic rendering of words is a Bad Thing. I've heard several writers voice that position.

Scorpio
Eccentricity

#29 ::: mythago ::: (view all by) ::: June 11, 2004, 07:22 PM:

Did any of those 'several' voice such positions here, in the context of a lawsuit in which free samples were posted without the creator's permission?

#30 ::: Teresa Nielsen Hayden ::: (view all by) ::: June 12, 2004, 09:36 AM:

My recollection is that the wider world was still sorting out the legal status of hosts, posts, and providers, and that AOL seemed to be pursuing a policy of "If we don't pay any attention to it, we can't be liable for not stopping it." The piracy may have done Harlan less damage than he imagined, but there are plenty of scenarios where posting pirated material could do a great deal of damage if the post were let stand, and far less damage if it were promptly removed. Harlan may have asked for the wrong remedies, but if AOL was making it impossible to tell AOL what was happening on their site, then there were arguably grounds for complaint.

#31 ::: Jules ::: (view all by) ::: June 12, 2004, 11:36 AM:

Janet - I'm not sure about US law, but if you were in the UK I would have doubts over whether those contract terms can be enforced. We have a concept (perhaps called due diligence? I'm not a legal expert, just an amateur...) whereby if you take all reasonable steps to ensure that you follow the requirements of a contract, you cannot be held responsible for third party actions/bad luck/whatever that causes you to fail. I would have thought there would be similar provisions in US law.

The Ellison case against AOL certainly seems to have interesting similarities to the Godfrey v Demon Internet libel case over here, where essentially Demon handled Godfrey's request to remove a libellous article incompetently, and were therefore deemed to be liable for it, whereas under normal circumstances they wouldn't be as they exercise no editorial control over what they publish.

#32 ::: xeger ::: (view all by) ::: June 12, 2004, 12:39 PM:

Reading through the initial judgement, and the opinion on the appeal, it sounds like AOL has one guaranteed defence in this case - and one potential that's heading off to the jury.

... and this presumes that the jury finds contributory copyright infringement [direct was abandoned on the appeal, and vicarious was denied as a matter of law].

The fact findings show that the email address that AOL had on file at the copyright office was changed to a different address - and the copyright office wasn't updated promptly - nor was the old address forwarded [or rejected] appropriately. I am curious though - did Ellison [or his lawyer][0] not use any other mechanism for contact [until being served]?


[0] Not counting the unrelated gentleman that's mentioned as calling AOL's front line tech support about a related issue, and who didn't send email about the issue as requested.

#33 ::: mythago ::: (view all by) ::: June 12, 2004, 03:02 PM:

If AOL presented the dead e-mail address as their preferred way for contacting them, then they probably can't say "You never called, you never wrote...." Certainly not for the period between when Ellison tried to e-mail them, and when it became obvious sterner measures were necessary.

#34 ::: Scorpio ::: (view all by) ::: June 12, 2004, 03:57 PM:

When AOL was headed by Steve Case (as I believe it was when Harlan filed suit), SteveCase@aol.com was always a valid address -- one that even got answers from humans.

For awhile, AOL tried a new program where they would delay logoffs with gratuitous advertising. I actually got a ping-pong set of mail informing them that this was *not* a service no matter how hard they wanted to pretend, with answer, counter, and a second response.

They must have received millions of infuriated mails, and double that with their answer, because the new "feature" went away Real Quick.

So unless Harlan tried to reach them during the attendant millions of complaints, he should have *easily* been able to get the attention of AOL's responsible parties.

Scorpio
Eccentricity

#35 ::: Marilee ::: (view all by) ::: June 12, 2004, 06:33 PM:

Teresa, Ellison's stuff was posted on Usenet servers. I can tell you as a former AOL volunteer that we scrupulously read everything placed on the AOL internal servers to make sure it wasn't violating copyright (and boy, did I have to read some slush).

#36 ::: xeger ::: (view all by) ::: June 12, 2004, 07:02 PM:

Mythago postulated:
If AOL presented the dead e-mail address as their preferred way for contacting them, then they probably can't say "You never called, you never wrote...." Certainly not for the period between when Ellison tried to e-mail them, and when it became obvious sterner measures were necessary.

If you read the findings you'll see that Ellison elected to sue the persons who scanned and posted his material, their ISP, the parent company of that ISP ... and AOL.

In order to be able to claim AOL as an offending party, Ellison only needed to fufill the legal requirement of notification of offence vis-a-vis an email to the email address listed by the copyright office.

I'd still like to know if Ellison tried any other mechanisms to contact AOL - or if he contacted any other indirectly associated providers/usenet carrying ISPs. It's purely personal bias, but I prefer to think that he'd have made a "best effort" attempt to contact a variety of ISPs carrying the offending content, rather than selecting a specific target, and adhering to the bare minimum contact required by law.

This doesn't excuse AOL from having done something particularly daft with their copyright complaint address - that was quite clearly wrong - but it does leave me curious about "why AOL".

#37 ::: mythago ::: (view all by) ::: June 12, 2004, 07:57 PM:

This doesn't excuse AOL from having done something particularly daft with their copyright complaint address - that was quite clearly wrong - but it does leave me curious about "why AOL".

If you read upstream a bit, C.E. Pettit's post makes it pretty clear why: AOL stored the pirated material on its news servers.

When the law (DMCA in this case) mandates that an ISP maintain a valid, registered e-mail address for coypright complaints, and the ISP fails to do so, the ISP can't then turn around and say "Gosh! We had no idea! Why didn't you tell us?"

#38 ::: xeger ::: (view all by) ::: June 12, 2004, 11:13 PM:

Mythago notes:

If you read upstream a bit, C.E. Pettit's post makes it pretty clear why: AOL stored the pirated material on its news servers.

When the law (DMCA in this case) mandates that an ISP maintain a valid, registered e-mail address for coypright complaints, and the ISP fails to do so, the ISP can't then turn around and say "Gosh! We had no idea! Why didn't you tell us?"

Hrm. I think that I've been presuming something to be obvious. Usenet news is massively distributed and automated. The pirated material in question would have been stored on tens of thousands of machines around the world. It certainly wasn't an offence limited to AOL.

My questions here are:

(1) Were other ISPs carrying the newsgroup also contacted? [0]

and if not,

(2) Why AOL in particular?

I agree with you completely that AOL should have had a valid registered email address, and shouldn't have lagged updating it after they changed it - or routed the original address into the void. That was very clearly Wrong and Bad. It is, however, not what I'm wanting to find out ;)

[0] Not counting the ISP of the original offender or their parent company, who are both named in the complaint.

#39 ::: Marilee ::: (view all by) ::: June 13, 2004, 12:33 AM:

Mythago, the Ellison stuff wasn't *stored* on AOL's servers. Like all Usenet, it was passed server to server -- it was at some time probably on every Usenet server in the world. AOL scrolls messages off after a month (as does my ISP, Erols). Other ISPs scroll messages faster or slower. I suspect it just looked like AOL had big pockets.

The lack of new email to the copyright office was probably an oversight. This year, the WashPost forgot to renew their washingtonpost.com domain, for example.

#40 ::: mythago ::: (view all by) ::: June 13, 2004, 01:32 AM:

The lack of new email to the copyright office was probably an oversight.

There is no "oopsie, forgot" exemption in DMCA. According to the court's opinion (reiterating what the courts found to be The Facts of the case), the address was bad for months. That's not what we lawyerly types call de minimis, and it means AOL may not have fallen under the DMCA's safe harbor provisions.

Why AOL? Deep pockets, perhaps, but also the fact that they did such a lame-ass job of policing copyright violations.

#41 ::: Don Fitch ::: (view all by) ::: June 13, 2004, 04:51 AM:

James J Murray wrote "Given the time, money and tsuris Harlan spent on this, he deserves the thanks of authors everywhere. It should be their choice if their works are online."

I'd say yes, to the last point, but the important thing is that Harlan sued the wrong people. Or rather, he seems to have settled for some trivial amount with the actually guilty parties (those who posted the material).

I'm not surprised by, and don't disagree with, the Court's conclusion that AOL Fouled Up Royally -- having had an AOL @ since my OnLine Year One, I have a deep and abiding feeling that the Universe Would End if AOL did _anything_ competently.

#42 ::: xeger ::: (view all by) ::: June 13, 2004, 09:58 AM:

Don Fitch may hear horses on the roof:

I'm not surprised by, and don't disagree with, the Court's conclusion that AOL Fouled Up Royally -- having had an AOL @ since my OnLine Year One, I have a deep and abiding feeling that the Universe Would End if AOL did _anything_ competently.

Much as AOL does give me heartburn now and again, they are successfully running internet access for a truely insane number of people around the world - and for the most part, it Just Works (tm). I'd have to describe that as "competent".

I should also add that my last experience with AOL was remarkably satisfying - my mail host had gotten into their list of addresses blocked as spam sources, and they were highly responsive, and fixed the issue in a hurry. YMMV of course, but I was pleased and delighted.

#43 ::: Marilee ::: (view all by) ::: June 13, 2004, 05:44 PM:

Mythago: "Why AOL? Deep pockets, perhaps, but also the fact that they did such a lame-ass job of policing copyright violations."

In that case, every ISP that runs a news server in the world should be prosecuted.

I'm not saying the fact that AOL probably forgot to update the address was excusable, just that it happens more often than people might think, particularly in large organizations where staff changes rapidly.

#44 ::: mythago ::: (view all by) ::: June 13, 2004, 06:56 PM:

Yes, it does happen. That's not Mr. Ellison's problem, and from the court's perspective, it's completely irrelevant.

#45 ::: xeger ::: (view all by) ::: June 13, 2004, 07:02 PM:

mythago writes:

Yes, it does happen. That's not Mr. Ellison's problem, and from the court's perspective, it's completely irrelevant.

... and that sounds so much like another Mr. Ellison we all know and love.

#46 ::: Lenny Bailes ::: (view all by) ::: June 13, 2004, 11:52 PM:

This thread has made me want to do this for days. I hope you'll all forgive me.

#47 ::: Doug ::: (view all by) ::: June 14, 2004, 04:51 PM:

Thanks, Robert L. Anything more specific? Unsubstantiated rumors gladly propagated...

#48 ::: mythago ::: (view all by) ::: June 14, 2004, 06:40 PM:

xeger, the fact that lots of other people are also wrongdoers doesn't excuse one's own wrongdoing, nor does it mean the it's the victim's problem. It's AOL's job to comply with the law--that's why they have expensive lawyers in the first place. Failing to comply with DMCA for months is a rather large oopsie.

#49 ::: mythago ::: (view all by) ::: June 14, 2004, 10:55 PM:

Oh, and Something Awful's 6/15 cover story is, um, well.

Let's Annoy Harlan Ellison

#50 ::: Arlen ::: (view all by) ::: June 15, 2004, 10:36 AM:

AOL was guilty of neglect, regarding the email address, though it would have taken Harlan's lawyer all of 5 minutes to discover one that actually worked, providing any level of effort was made. (I still don't understand why ten days elapsed after sending the first email; if it was important enough to grab a lawyer over, surely it was important enough to realize that after 48 hours elapsed without any sort of response it was time to make another attempt.)

We read often enough about guilty parties getting off on a technicality; in this case it was a technicality that put a not-guilty party on the hook. (I agree that the posting of Ellison's books was a Bad Thing; I just assert that AOL was not the villain in this case. That role is played by the one who posted the books, and the jerks who downloaded them and kept them even after knowing they were piracies.)

It should be noted: Deleting all of the works in question off its internal USENET servers would have had zero effect on the ability even of AOL members to access the material in question. There are several other servers around the world that AOL subscribers could use to access the material, and the information on accessing them is readily available. AOL was victimised by Ellison simply because they were the richest target in the vicinity.

Ellison would have been better off helping Borealis with the distribution of the Edgeworks series. I wanted to buy the complete run, but only the first two volumes ever made it into any of the local bookstores. (And for once this is where the Big Guys outshined the independents, because the only copies I ever found were at a local B&N, none of the independents in the area carried a single volume, that I ever found -- I went to the B&N as a Last Resort.)

#51 ::: Jeremy Leader ::: (view all by) ::: June 15, 2004, 12:58 PM:

AOL was victimised by Ellison simply because they were the richest target in the vicinity...

and they broke the law.

Yeah, what they did wasn't too horrible, and didn't by itself hurt or even inconvenience Ellison much, but some of the money they made was arguably paid by people using their services to access illegal copies of Ellison's work. And it's not like the penalty was (presumably) all that severe, compared to the size of AOL's business.

If you're as big as AOL, and the law says "you must register and maintain a valid email address", then allowing your registered address to stop working for an extended period says that you think you don't have to obey the law.

Look at it this way: AOL committed a minor technical breach of the law, potentially affecting hundreds of thousands of copyright holders. As a result, they had to pay what was to them a pretty minor amount of money. Sounds pretty fair to me.

In my opinion, if AOL's email address had worked, and they had cancelled the specific articles Ellison objected to reasonably promptly, then Ellison should have had no case.

#52 ::: mythago ::: (view all by) ::: June 15, 2004, 01:47 PM:

Jeremy's take on it is spot-on.

We read often enough about guilty parties getting off on a technicality

Conjugate: I properly and vigorously defend my rights under the law; you try to find exceptions; he gets off on a technicality.

The 'technicality' in this case was a very clear, very simple requirement: Maintain a working e-mail address, so if you are making money by keeping pirated material around for others to read, you can be contacted about it. That's not buried in legalese, or so obscure that nobody could possibly comply.

And the failure was not what we call de minimis: AOL didn't have the e-mail address expire and then fix it the next morning. It sat for months before it was brought into compliance.

There are several other servers around the world that AOL subscribers could use to access the material

Irrelevant. The fact that a bad neighborhood has drug dealers on every block does not excuse me from peddling crack, on the grounds that they would just get it from somebody else if I flushed my stash down the toilet.

#53 ::: Arlen ::: (view all by) ::: June 15, 2004, 11:31 PM:

"In my opinion, if AOL's email address had worked, and they had cancelled the specific articles Ellison objected to reasonably promptly, then Ellison should have had no case."

Ah, but in the definition of "reasonably promptly" is where it all lies. According to the Ninth Circuit, by the time Ellison filed his lawsuit, the articles were off the AOL servers. The timeline as I understand it was: the ineffective email was sent, and less than 10 calendar days later the articles were gone. How much less than ten days the documents aren't clear on; how soon would you say satisfies "reasonably promptly."

As for the bad email address meaning they didn't think they had to obey the law: Poppycock. More likely, what it says is the people in charge of maintaining email addresses weren't aware of the legal requirement for that address. We aren't talking about a single server with a lone sysadmin running the whole shebang, after all. Having experience in large corps, it wouldn't surprise me in the least if the one making the decision to move the address wasn't aware of the registration, or assumed another dept would take care of the notification, while the one in charge of the legal registration assumed the other would take care of the update. A lack of internal communication is a far more likely scenario than intent. Like I said in my original post, AOL was guilty of neglect, not piracy. It was inadvertance, not intent.

And Mythago, you missed the point of my comment. I was merely pointing out that the lawsuit wasn't aimed at the right people, and using as evidence of that assertion the fact that had Harlan prevailed immediately, the net effect would have been zero. If you're suing over something bad being done to you, but the damage would still continue, even if the party being sued immediately ceases (or for that matter, had never done in the first place what they're being sued for) that's a pretty good indication that you're targeting the wrong folks.

To pick up your scenario and make it conform more to the case at hand, it's as if the police have equal evidence against every drug dealer in the neighborhood, as well as their supplier, but rather than go after the supplier, they choose instead to arrest me, the man who paved the driveways of the houses where the dealers' customers park.

AOL had as much to do with this act of piracy as the telephone company, yet somehow AOL's guilty and Ma Bell isn't?

Yes, the file was on AOL's servers. It was probably also on the hard drive of several hundred (at least) folks who had not intended to download it, as many newsreaders actually download the attached files into a local cache when a message is opened. Hence, many people who did nothing more than simply glance at the posting have stored a copy on their systems. I suppose the newsreader developers as well as those who used them should all be sued for piracy as well.

I chose the word precisely. Ellison was victimized by the unmentionable perp who posted those ebooks. And out of vengeance, Ellison in turn victimized AOL. I have been robbed; since the one who robbed me has no means to recompense me, I'm going to sue the taxi company that transported him to my party.

NB: As a former beta tester of AOL, I can perhaps be blamed for some of what it became (perhaps I should have been sued as well); I have no stake in defending it, however. I just happen to think Ellison was way off base in this instance.

#54 ::: mythago ::: (view all by) ::: June 16, 2004, 01:12 AM:

More likely, what it says is the people in charge of maintaining email addresses weren't aware of the legal requirement for that address.

That's AOL's fault. "Big corporations make mistakes" is not a defense under the DMCA, much less common sense. This is why big corporations, such as AOL, have people whose whole job is to monitor compliance. The ins and outs of AOL's bureaucracy are irrelevant. There was a clear legal mandate--have a functional e-mail address--and AOL boffed it, for months.

Arlen, I really recommend you take a look at the appeals court's opinion, linked to upthread:

A defendant is vicariously liable for copyright infringement if he enjoys a direct financial benefit from another’s infringing activity and “has the right and ability to supervise” the infringing activity.

Ma Bell has no right nor ability to supervise your phone calls; AOL has the right and ability to determine what Usenet groups it hosts, how long they will be stored, and who has access (if anyone) to those groups.

#55 ::: Jonathan Vos Post ::: (view all by) ::: June 16, 2004, 01:15 AM:

Again, I Am Not A Lawyer, and I am herein referring to a precedent in a slightly different law, but it is a propos.

There's a case of Libel, in the USA, where someone had written explicit sexual obscenities about a woman, on the bathroom wall of a bar/pub, and given her phone number. Her husband received some disturbing phonecalls. He eventually figured out what was happening. He contacted the bartender, who promised to erase the writing on the wall. But the bartender failed to do so PROMPTLY. There was at least another phonecall. The husband sued the owner of the bar. The husband won the case.

When someone says or writes something damaging about you, and you protest, there can be an enforced ability to get some property owner to stop publication or republication.

I was ultimately unably to prevail against a Fortune 100 coporporation who failed to exert resonably effort, for over a decade, to stop damaging words about me in speech and in print by two co-employees, who were also demented so-called "fans" of science fiction and the space program. I most certainly make no generalization to other fans, so many of whom have made my life an ongoing delight.

But Harlan and I had no choice, really. I iterate: a scientist or an author owns nothing except intellectual property and reputation. Anyone who maliciously attempts to steal or damage either must be opposed, on general principle. Not just for selfish reasons, either. Society as a whole benefits from such enforcement.

I reiterate: Harlan Ellison is a hero. AOL is a pretty big windmill to tilt at, and Harlan certaintly did not lose this quixotic quest. There are other fights that he fights behind the scenes to benefit all artists and writers. There are individuals that he helps, on the condition that they not tell of his generosity.

Please do not misjudge this great man, based on comments out of context, on a blog, or sour grapes uttered at conventions. Hero is as hero does.

#56 ::: xeger ::: (view all by) ::: June 16, 2004, 05:58 PM:

Mythago commented:

A defendant is vicariously liable for copyright infringement if he enjoys a direct financial benefit from another’s infringing activity and “has the right and ability to supervise” the infringing activity.

Ma Bell has no right nor ability to supervise your phone calls; AOL has the right and ability to determine what Usenet groups it hosts, how long they will be stored, and who has access (if anyone) to those groups.

Er. To quote from the opinion:

[13] The record lacks evidence that AOL attracted or retained subscriptions because of the infringement or lost subscriptions because of AOL’s eventual obstruction of the infringement. Accordingly, no jury could reasonably conclude that AOL received a direct financial benefit from providing access to the infringing material. Therefore, Ellison’s claim of vicarious copyright infringement fails.

... or in other words, the court threw out Ellison's claim of vicarious copyright infringement.

At any rate, the DMCA safe harbours address (1) transitory digital communications, (2) system caching (3) information residing on systems or networks and the direction of users, and (4) information location tools.

In this case, services like Usenet are probably addressed under sections 1-3 above - it's a transitory digital communication, kept in system cache, and accessed at the direction of users.

The charge that -did- stick is contributory infringement, because if AOL's email address had worked, they -should- have known that potential infringing materials existed on their Usenet servers.

There's no expectation that they would have known without notification.

#57 ::: Terry Karney ::: (view all by) ::: June 18, 2004, 04:06 PM:

The other thing about why AOL is that they are (for good or ill) visible.

Had Harlan prevailed against the small fry, who among us should have known?

Who among the greater world would have known.

As pointed out the sums involved are not large (in the terms of the legal budget of a company like AOL), yet the effect (a useful case of encourager les autres) is greater than that becaus some entity which ought to care, has been made to care, at least a little bit.

#58 ::: Robert L ::: (view all by) ::: June 20, 2004, 02:58 PM:

Doug--I really don't know the details. I do know there was at one time a deal with Zebra to reprint his backlist, but it never ended up happening. I realy don't know the details.

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