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Harlan Ellison vs. AOL Judgment Reversed

timothy posted more than 10 years ago | from the no-forwarding-address dept.

The Courts 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."

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oh la ley (-1)

(TK)Max (668795) | more than 10 years ago | (#8486067)

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Re:oh la ley (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#8486406)

You mean "Harlan Ellison," the famous nigger?

I NEED HELP!!!!!! (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#8486071)

i recently discovered at quite the shock to myself that i have tiny negros running in and out of my anus! it came as to quite a shock to me and a very unnerving way to wake up!

i quickly thought of the most gay website out on the interweb i could and i knew suddenly that /. would be the place i was looking for & hopefully some of you homosexuals can help me stop these little negros from stealing my shit!

please respond ASAP! i think they maybe distant realitives of taco a cowbow kneel!

Wow (1, Insightful)

M3wThr33 (310489) | more than 10 years ago | (#8486072)

They failed to change copyright to forward to aolcopyright? That does sound a bit odd. But AOL is known for doing stupid things.

Re:Wow (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486129)

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Important Stuff: Please try to keep posts on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Important Stuff: Please try to keep posts on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Important Stuff: Please try to keep posts on topic. Try to reply to other people's comments instead of starting new threads. Read other people's messages before posting your own to avoid simply duplicating what has already been said. Use a clear subject that describes what your message is about. Offtopic, Inflammatory, Inappropriate, Illegal, or Offensive comments might be moderated. (You can read everything, even moderated posts, by adjusting your threshold on the User Preferences Page) If you want replies to your comments sent to you, consider logging in or creating an account.

Re:Wow (5, Funny)

NoSuchGuy (308510) | more than 10 years ago | (#8486154)

Do you think AOL is an ISP?

Get real!

They are a CD-Company, always sending out these so called AOL-CDs.

Re:Wow (1)

RichMan (8097) | more than 10 years ago | (#8486292)

My nieces think of AOL as an art supply company. We have made some neat things out of my collection of AOL CD's.

Re:Wow (5, Insightful)

anonymous cowfart (576665) | more than 10 years ago | (#8486234)

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.

MOD PARENT UP! (0)

Anonymous Coward | more than 10 years ago | (#8486314)

Why is parent still sitting at -1? That is one of the most insightful posts I've ever read on Slashdot!

Re:MOD PARENT UP! (-1, Troll)

Anonymous Coward | more than 10 years ago | (#8486384)

c0mmun15t fag0rt!

wOOt! (-1, Troll)

Anonymous Coward | more than 10 years ago | (#8486080)

wOOt!!

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Its the law (3, Insightful)

Zeinfeld (263942) | more than 10 years ago | (#8486085)

Exactly why are people surprised here? AOL gave their contact address to the copyright office, they failed to listen to the complaints delivered.

Looks like actual notice to me.

Re:Its the law (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486110)

If George Bush is complaining the sex in his marriage is always the same, the answer is not changing the constitution.

Are you gay or something?

Do you people really want to raise your tax-rate in order to guarantee the ass-spelunkers their "family benefits"?

Re:Its the law (0, Offtopic)

asit+ler (688945) | more than 10 years ago | (#8486158)

Are you gay or something?

So the fuck what if he is? What has that to do with the price of cheese?

*waits for answer*
*hears bewildered silence*

It makes no difference. The people who choose to live a different lifestyle than your own have just as much right to live that lifestyle as you do to live your own.

--

Re:Its the law (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486182)

right to live that lifestyle as you do to live your own.

No they don't if it costs me extra money.

I sure as hell am not paying taxes to help the fags to adopt and pervert kids into accepting their lifestyle because "they have the right to a family too".

Want a right to a family? Learn how to give birth.

Re:Its the law (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486439)

And if that involves shoving your dick up the ass of another man who are we to comment? And if you want to give blow jobs to dogs who are we to comment? And if you want to cut off, cook, and eat the penis of a willing participant who are we to comment? If it feels good then just do it. No one has a right to comment on your life-style choices much less refuse to hire or serve you.

Be sure to accuse anyone who objects as suffering from a phobia because it's their problem not yours. For example, if you like to pick your nose and eat it but people complain then accuse them of being boogerphagiaphobes. After all, it's a personal choice and if you want to eat boogers who has a right to complain?

Re:Its the law (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486161)

Do you people really want to raise your tax-rate in order to guarantee the ass-spelunkers their "family benefits"?

No quite the opposite, I'd get rid of all state-granted benefits for marriage. If people want to get married, gay or straight, that's fine by me. If they don't want to get married then I don't want my taxes used to bribe them into it.

Re:Its the law (0, Flamebait)

miu (626917) | more than 10 years ago | (#8486180)

Do you people really want to raise your tax-rate in order to guarantee the ass-spelunkers their "family benefits"?

Yes. I also hope that atavisms like you die out soon, I'm tired of subsidizing your breeding with my tax dollars.

Breeding is natural (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486218)

Breeding? You say it as having children is a bad thing?

Wake up. Procreation is sacred. Even if you don't believe in God, having children is the way how the human race survives and must therefore given the ultimate priority.

It's typical that the pro-fags are usually pro-abortion too. It's all done in order to devalue the act of procreation.

Re:Breeding is natural (-1, Offtopic)

Anonymous Coward | more than 10 years ago | (#8486277)

It's typical that the pro-fags are usually pro-abortion too

Don't you dare guess my beliefs. I believe abortion is murder, have since I understood the issues enough to think about it.

Procreation is not sacred. I'm tired of the future being more important than the now. I'm tired of yuppie fucks trying to make the world safe for kids. I'm tired of children in restaurants and movie theaters. The only people who need tax breaks for children are the poor, parents are already subsidized by the fact that I'm paying for their little buggers to go to school.

Stupid (0)

Anonymous Coward | more than 10 years ago | (#8486287)

I can't believe that stupid people like you can actually read.

Do you browse Slashdot for the ads only?

Re:Breeding is natural (0)

Anonymous Coward | more than 10 years ago | (#8486311)

Shut the fuck up GWB.

We've told you not to post on Slashdot before!

Re:Its the law (2, Informative)

LostCluster (625375) | more than 10 years ago | (#8486340)

And we should not that even though the notice was sent by e-mail which isn't always reliable, we know that this e-mail worked because the plantiff was able to force AOL to admit their own logs showed that they got it into their systems, it just sat in an account nobody bothered to check anymore and they didn't forward or send bounces.

Sorry, AOL. You got served. You've got lawsuit.

Re:Its the law (4, Insightful)

Anonymous Coward | more than 10 years ago | (#8486531)

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!"

Unfamiliar... (0, Troll)

JayBlalock (635935) | more than 10 years ago | (#8486089)

I haven't heard of this case. Could someone post (or link to) a summary?

That excerpt sounds like they're holding AOL responsible for the actions of its users, based on AOL having a bad e-mail address listed. Which sounds insane, so there must be more going on...

Re:Unfamiliar... (5, Insightful)

LostCluster (625375) | more than 10 years ago | (#8486122)

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.

Re:Unfamiliar... (5, Informative)

Robotech_Master (14247) | more than 10 years ago | (#8486188)

Well, you can read up pretty easily by just googling on "Harlan Ellison copyright binaries" [google.com] . The short form is that Ellison discovered some of his works were being posted to an alt.binaries group and got ticked off [speculations.com] in his own uniquely Ellisonian ranting, raving, frothing-at-the-mouth way. AOL requested and received a summary judgment [phillipsnizer.com] 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.

Re:Unfamiliar... (1)

JayBlalock (635935) | more than 10 years ago | (#8486316)

Thanks all! :-)

Harlan Ellison is a nut case. (0, Offtopic)

intertwingled (574374) | more than 10 years ago | (#8486090)

But he writes good sci fi. =)

Re:Harlan Ellison is a nut case. (0)

Anonymous Coward | more than 10 years ago | (#8486303)

Does wanting to get paid for your hard labors qualify you as a nut around here?

Re:Harlan Ellison is a nut case. (2, Insightful)

tverbeek (457094) | more than 10 years ago | (#8486313)

But he writes good sci fi. =)

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:Harlan Ellison is a nut case. (1)

AJWM (19027) | more than 10 years ago | (#8486338)

Well, he used to write good SF. Has he been reduced to writing sci fi (he pronounces it "skiffy") now?

(Actually I haven't seen much new from him in a long time.)

Re:Harlan Ellison is a nut case. (2, Informative)

mikeophile (647318) | more than 10 years ago | (#8486371)

The term is 'speculative fiction'.

Re:Harlan Ellison is a nut case. (1)

EvilFrog (559066) | more than 10 years ago | (#8486522)

"Speculative Fiction"? Isn't that a bit redundant?

Or should "Speculative" be prounounced "Pretentious"?

Not to say that the work is in itself pretentious (I wouldn't know), but coining a new genre when none is necessary throws up a red flag in my mind.

Re:Harlan Ellison is a nut case. (5, Funny)

An Onerous Coward (222037) | more than 10 years ago | (#8486413)

I'm not familiar with this author. Can somebody tell me where I can download some of his works?

City on the Edge of Forever (3, Funny)

Latent Heat (558884) | more than 10 years ago | (#8486641)

Didn't he write that Star Trek episode where DeForest Kelly saves Joan Collins from getting flattened by a street car, and because she is an influential peace activist, Sadda^H^H^H^H^HHitler takes over the world and the Enterprise vanishes because the Federation never happens, Spock bitches and moans about 1930's tech in building a video monitor to read images from his tricorder (I guess the tricorder doesn't have a display -- and Spock is awful testy for someone who doesn't have emotion).

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.

Summary. (0, Insightful)

Anonymous Coward | more than 10 years ago | (#8486097)

If you find someone copying your stuff on the internet, don't send a notice to the ISP's email address, CALL THEM!

Shorter summary:
If it needs to be done, email ain't the mode of communication you want.

Rebuttal (2, Informative)

2nd Post! (213333) | more than 10 years ago | (#8486143)

From the submission blurb: 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."

Re:Summary. (3, Insightful)

LostCluster (625375) | more than 10 years ago | (#8486220)

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.

Re:Summary. (2, Informative)

Saven Marek (739395) | more than 10 years ago | (#8486241)

Phone them, email them, and contact them by registered mail. If your copyrighted works are online then you are losing income, and losing control over what you have the right to copy.

Granted, this can be abused easily if frivolous cases are constantly being brought to hand by a vexatious copyright holder (in the SCO mold who may not even own copyright). If you find your copyrighted work is being distributed illegally then it's your job to report it and get something done about it, sitting around after firing off an email and getting no response back indicates to me that you've been ignored or something's wrong with the system.

That being said, the fact that AOL has an email address registered with the copyright office and it's the wrong one does mean they're not making it easy via that one avenue of complaint. It doesn't affect the others, and picking up the phone makes sure you KNOW your complaint has been heard

Nude mac desktops [67.160.223.119]

Phone call is useless with any large organisation (2, Insightful)

blorg (726186) | more than 10 years ago | (#8486362)

picking up the phone makes sure you KNOW your complaint has been heard

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.

Slashlaw (4, Funny)

KU_Fletch (678324) | more than 10 years ago | (#8486099)

Slashlaw: The Finest in IANAL Speculation

Its Usenet? (2, Interesting)

Blackknight (25168) | more than 10 years ago | (#8486103)

As far as I know Usenet is a global network. AOL cannot possibly control what is posted on there, unless they stop carrying that newsgroup entirely.

YOU ARE A FUCKING RETARD (-1, Flamebait)

Anonymous Coward | more than 10 years ago | (#8486135)

Do you even know ONE thing about this case? Its clear from your post that you don't. Maybe you should shut the fuck up rather than show the world what an ignorant cunt you are. Ugh, this is why I hate Slashdot. Well that and Taco's a fucking simp.

Re:Its Usenet? (3, Informative)

LostCluster (625375) | more than 10 years ago | (#8486147)

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.

Re:Its Usenet? (3, Informative)

Dun Malg (230075) | more than 10 years ago | (#8486219)

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.

Then again, how many people who know how to get binaries off USENET use AOL?

Re:Its Usenet? (2, Interesting)

fiendo (217830) | more than 10 years ago | (#8486197)

AOL cannot possibly control what is posted on there...

They can if its their users who posted it and if the material is being hosted on servers they own.

Where's the problem? (0, Offtopic)

TWX (665546) | more than 10 years ago | (#8486118)

If I interpret this correctly, some of Ellison's work was posted on Usenet, from AOL. So, is it copyright infringement if no one wants to read it?

Look up the history of things surrounding "City on the Edge of Forever" if you want to hear about what Ellison wanted to do to Star Trek, compared to what they ended up having to revise to make actually work.

Re:Where's the problem? (1)

HrothgarReborn (740385) | more than 10 years ago | (#8486232)

Fascinating. Apperently he wote Scotty as an intersteller drug dealer. So I guess Bones was an addict in the orignal instead of accidentally getting shot up.
It is one of my favorite episodes of TOS though I would love to see some one post a good link to how he wrote this and how it was changed.

Re:Where's the problem? (4, Informative)

Lurker (1078) | more than 10 years ago | (#8486310)

Fascinating. Apperently he wote Scotty as an intersteller drug dealer. So I guess Bones was an addict in the orignal instead of accidentally getting shot up.

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.

Re:Where's the problem? (1, Funny)

Anonymous Coward | more than 10 years ago | (#8486492)

It's a conspiracy I tell you! A CONSPIRACY!

Bad Defense (0)

illuminata (668963) | more than 10 years ago | (#8486121)

Blame the spamblocker, AOL. Don't say that there was no way that email could have been forwarded.

Come on, use your heads! You could have gotten off, baby!

Solution for AOL (4, Funny)

Anonymous Coward | more than 10 years ago | (#8486126)

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.

Dear ghod... (5, Interesting)

bentonsmith (81425) | more than 10 years ago | (#8486130)


I've never heard nor seen USENET refered to as a "peer to peer" file sharing network.

Or a hyphenation of "news-group".

Re:Dear ghod... (1)

AndroidCat (229562) | more than 10 years ago | (#8486254)

M. Christine Valada, Esq seems to think that newsgroups have "mirror sites".

Re:Dear ghod... (4, Insightful)

cbreaker (561297) | more than 10 years ago | (#8486325)

Yea, all of a sudden anything having to do with "illegal" content is immediately labeled "peer to peer."

Re:Dear ghod... (4, Insightful)

iminplaya (723125) | more than 10 years ago | (#8486503)

It's either that or "terrorist". Take your pick :-)

Re:Dear ghod... (4, Insightful)

kisrael (134664) | more than 10 years ago | (#8486353)

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.

Re:Dear ghod... (1)

drinkypoo (153816) | more than 10 years ago | (#8486408)

USENET is not P2P because you do not retrieve the content from the originating location. It is sent from server to server, and you have access only to stuff on your local server. Sounds like a clear-cut case of a client-server model to me.

Re:Dear ghod... (1)

bsartist (550317) | more than 10 years ago | (#8486571)

More of a hybrid. The connection between your news reader and some server is pure client-server. But, the propogation of articles among servers is more of a peer-to-peer model.

Just settle (3, Funny)

mao che minh (611166) | more than 10 years ago | (#8486142)

Why doesn't AOL just settle with Ellison, maybe offer him like 5,000 free hours instead of the normal 2,500?

Re:Just settle (2, Insightful)

endx7 (706884) | more than 10 years ago | (#8486178)

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?)

Can someone explain USENET to me? (-1, Offtopic)

egg troll (515396) | more than 10 years ago | (#8486149)

What's the deal with it? Is it good or is it whack? I'd be thankful if someone could explain the concept of Usenet to me?

Re:Can someone explain USENET to me? (-1, Troll)

Anonymous Coward | more than 10 years ago | (#8486183)

Usenet cannot be explained. You must experience it to understand it.
Warning! Goatse.cx is a mild experience compared to what you face on USENET!

Seems strange to trust email so much... (4, Interesting)

MadAnthony02 (626886) | more than 10 years ago | (#8486169)

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:Seems strange to trust email so much... (2, Informative)

fiendo (217830) | more than 10 years ago | (#8486286)

It was not that e-mail is a legal notice necessarily, its the fact that it was AOL's specified policy to use e-mail as an acceptable way of notifying them of infringement. They lost their safe harbor status for failing to properly implement their own policy.

Re:Seems strange to trust email so much... (1)

Saven Marek (739395) | more than 10 years ago | (#8486291)

The advantage I see with email is you get a response and know it's working. You communicate. That's the essence of contacting the ISP about a copyright issue, you contact them to resolve the problem, not only to send a takedown notice to them and then hope they comply with no further followup, only hoping that the fact it was registered mail means you can sue them later.

If it were my work being distributed illegally, I'd have emailed, telephoned, sent registered mail and kept at them until something was done

Granted as this didn't happen, Ellison had recourse by suing AOL, but I'd rather it didn't lead to that if I were in his shoes and would do all I could to avoid it. Then again, monetary damages against AOL may provide Ellison with far more benefit than regaining control of his copyrighted works being posted on AOLs servers.

Nude macgirl webcams [150.101.193.146]

Re:Seems strange to trust email so much... (1)

LostCluster (625375) | more than 10 years ago | (#8486293)

The reason you use registered mail is because you want legal vaild confirmation of delivery handed to you.

E-mail doesn't technically generate a good enough proof of delivery. However, if you can grab the server logs from whomever was being served and then show your message was mentioned in those laws... there's some proof that notice was served. That's a little harder to get, but in this case he got it, and he also got a phone record that shows that an AOL user called to point this out and AOL took no action. AOL was therefore legally deemed on notice...

Depends on the argument... (1)

Kjella (173770) | more than 10 years ago | (#8486324)

...if they had argued that the email had not been delivered due to technical problems, filtering or whatnot, it might be a valid defense. Same as claiming the postal service failed to deliver your letter.

But when you're legally required to have a correct address registered with the copyright office, and fail to do so, I fail to see the problem. That's like relocating, and not informing the copyright office because any regular mail could have been lost anyway.

The more interesting question is if AOL is responsible for the files on Usenet - as far as I know they've not been held liable in the US so far, but the practice world wide is differing. I know that here a company was fined 1.000.000 NOK for carrying kiddie porn groups, while strangely enough warez and mp3 groups go completely unpunished.

Kjella

Re:Seems strange to trust email so much... (5, Informative)

mindstrm (20013) | more than 10 years ago | (#8486345)

Email has always been legally acceptable.. the only issue is whether you can prove in court an email was really delivered or not.

ANY form of communication can constitute a valid contract, some are just harder to prove than others.

A written piece of paper with real original signatures, including several witnesses, is fairly hard to fake. That's why important legal documents have so many signatories.. it's to show that yes, all parties understood the contract, and yes, all parties willingly agreed to it.

In this case, AOL *registered* their email address with the copyright office as a valid way to contact them about copyright issues... that's the point. Had they not done this, they could have insisited on some other method probably.

But they said "this is the address that we will accept complaints on".. then they proceeded to ignore those complaints through mismanagement.

Harlan Ellison Fights for Creator's Rights! (2, Flamebait)

intertwingled (574374) | more than 10 years ago | (#8486173)

HARLAN ELLISON FIGHTS FOR CREATORS' RIGHTS

Re: Harlan Ellison v. Stephen Robertson, America Online, Inc., RemarQ Communities, Inc., Critical Path, Inc., Citizen 513, and Does 1-10, Federal District Court, Central District of California Civil Case No. 00-04321 FMC (RCx)

22 February 2001

FOR THE PAST TEN MONTHS MY ATTORNEY, M. CHRISTINE VALADA, AND I HAVE BEEN HIP-DEEP FIGHTING A LEGAL BATTLE, WHAT WE THINK IS AN EXTREMELY IMPORTANT CASE:

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.

AOL, REMARQ/CRITICAL PATH AND A HOST OF SELF-SERVING INDIVIDUALS SEEM TO THINK THAT THEY CAN ALLOW THE DISSEMINATION OF WRITERS' WORK ON THE INTERNET WITHOUT AUTHORIZATION, AND WITHOUT PAYMENT, UNDER THE BANNER OF "FAIR USE" OR THE IDIOT SLOGAN "INFORMATION MUST BE FREE." A WRITER'S WORK IS NOT INFORMATION: IT IS OUR CREATIVE PROPERTY, OUR LIVELIHOOD AND OUR FAMILIES' ANNUITY. WHY SHOULD ANY ARTIST, OF ANY KIND, CONTINUE CREATING NEW WORK, EKING OUT AN EXISTENCE IN PURSUIT OF A CAREER, FOLLOWING THE MUSE, WHEN LITTLE INTERNET THIEVES, RODENTS WITHOUT ETHIC OR UNDERSTANDING, STEAL AND STEAL AND STEAL, CONVENIENCING THEMSELVES AND "SCREW THE AUTHOR"? WHAT WE'RE LOOKING AT IS THE DEATH OF THE PROFESSIONAL WRITER!

THIS IS NOT ONLY MY FIGHT, I'M NOT THE ONLY ONE WHOSE WORK IS BEING PIRATED. HUNDREDS OF WRITERS' STORIES, ENTIRE BOOKS, THE WORK OF A LIFETIME, EVERYONE FROM ISAAC ASIMOV TO ROGER ZELAZNY: THEIR WORK HAS BEEN THROWN ONTO THE WEB BY THESE SMARTASS VANDALS WHO FIND IT AN IMPOSITION TO HAVE TO PAY FOR THE GOODS. (BUT GAWD FORBID YOU TRY TO APPROPRIATE SOMETHING OF THEIRS...LISTEN TO 'EM SQUEAL!) THE OUTCOME OF THIS CASE WILL AFFECT EVERY WRITER, EDITOR, PHOTOGRAPHER, ARTIST, MUSICIAN, POET, SCULPTOR, ACTOR, BOOK DESIGNER, PUBLISHER AND READER. WHAT WE'RE LOOKING AT IS THE ANARCHY OF IGNORANT THIEVES RIPPING OFF THOSE WHO LABOR FOR AN HONEST PAYDAY, BECAUSE THEY CONVENIENTLY HONOR THE LIE THAT EVERYTHING SHOULD BE THEIRS FOR THE TAKING.

LOOK, THIS IS YOUR FIGHT, TOO. IF THAT DEMENTED, SELF-SERVING MISUNDERSTANDING OF THE WORD "INFORMATION" PREVAILS, AND EVERY ZERO-ETHIC TOT WHO WANTS EVERYTHING FOR NOTHING, WHO EXISTS IN A TIME WHERE E-COMMERCE HUSTLERS HAVE CONVINCED HIM/HER THAT THEY'RE ENTITLED TO EVERYTHING FOR NOTHING PREVAILS, AND THEY ARE PERMITTED TO BELIEVE INFORMATION MUST BE FREE, WITH NO DIFFERENTIATION MADE BETWEEN RAW DATA AND THE CREATIVE PROPERTIES THAT PROVIDE ALL ARTISTS OF ANY KIND WITH AN ANNUITY, TO ALLOW THEM TO CONTINUE CREATING NEW WORK, THEN WHAT WE'RE LOOKING AT IS THE EGREGIOUS INEVITABILITY OF NO ONE BUT AMATEURS GETTING THEIR WORK EXPOSED, WHILE THOSE WHO PRODUCE THE BULK OF ALL PROFESSIONAL-LEVEL ART FIND THEY CANNOT MAKE A DECENT LIVING.

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. MOST CREATORS PRACTICE THEIR ART BECAUSE THEY LOVE IT. IF IT WERE ONLY FOR THE BUCKS, THEY'D FARE BETTER AS DENTISTS, PLUMBERS, OR STEAM FITTERS. I'M FIGHTING FOR MYSELF, OF COURSE, BUT I'M ALSO DOING THIS FOR AVRAM DAVIDSON, WHO DIED BROKE; FOR ROGER ZELAZNY, WHO HAD TO WORK LIKE A DOG TILL THE DAY HE PITCHED OVER; AND FOR GERALD KERSH, WHOSE WORK WAS REPRINTED AND PIRATED IN SIXTY-FIVE COUNTRIES, WHILE HE HAD TO BORROW MONEY FROM FRIENDS TO FIGHT OFF THE CANCER. THIS IS YOUR FIGHT, TOO, GANG... AND NOW WE NEED YOUR HELP!

FOR THE PAST TEN MONTHS, MY ATTORNEY AND I HAVE FOUGHT THIS ALONE. ALTHOUGH WE ARE LOATH TO ASK, WE DO NOT HAVE THE ENDLESS DEEP POCKETS AND LAWYERS (14 AT THE LAST COUNT) THAT BENEFIT LARGE, ARROGANT CORPORATIONS. WE NOW NEED YOUR FINANCIAL HELP. AS TO THE MONEY BEING SPENT FOR THE DAVID-vs.-AOL GOLIATH LAWSUIT: YEAH, IT'S BEEN A BEAR. WE'RE ABOUT FORTY GRAND OUT OF POCKET, AND I'VE HAD TO SELL OFF A FEW PERSONAL POSSESSIONS AND MAGAZINE FILES TO MEET ATTORNEY COSTS. BUT WE'RE ABOUT TO ENTER THE "DISCOVERY PHASE" OF THE LITIGATION, AND AOL, REMARQ/CRITICAL PATH, ET AL ARE CLEARLY TRYING TO "PAPER US OUT," AND WHAT WE'VE SPENT UP TO NOW WILL SEEM LIKE A FART IN A SIROCCO. SO, YES, OH YES LAWD, CONTRIBUTIONS ARE GRATEFULLY ACCEPTED IN THIS FIGHT TO STAMP OUT INTERNET PIRACY.

TO MAKE ABSOLUTELY DEAD CERTAIN THAT NO ONE CAN EVEN REMOTELY SUGGEST THAT CONTRIBUTIONS WENT ANYWHERE BUT TO FIGHT THIS INFRINGEMENT OF WRITERS' RIGHTS, WE ARE SETTING UP A NEW POST OFFICE BOX ADDRESS, SPECIALLY AND ONLY FOR RECEIPT OF CONTRIBUTIONS TO WHAT WE ARE NOW CALLING KICK INTERNET PIRACY. AND ALL CHECKS MUST BE MADE PAYABLE DIRECTLY TO OUR ATTORNEY, M. CHRISTINE VALADA, TO HELP COVER COSTS AND LEGAL FEES. (AND WHEN WE ARE ASKED, "WELL, WHAT IS KICK AN ACRONYM FOR?" WE RESPOND, "IT'S FOR KICK 'EM IN THE ASS!")

IF YOU WANT TO HELP PROTECT YOUR RIGHTS, AND THE CAREERS OF WRITERS WHOSE WORK YOU ENJOY, PLEASE SEND YOUR CONTRIBUTION-A FEW BUCKS, OR A LOT OF BUCKS-TO:

KICK INTERNET PIRACY
POST OFFICE BOX 55935
SHERMAN OAKS, CA 91413

PLEASE MAKE YOUR CHECK PAYABLE TO:
LAW OFFICE OF M. CHRISTINE VALADA

Attached is detailed information on the case prepared by the fighting barrister, M. Christine Valada.

WHATEVER HELP YOU SEND, WE THANK YOU.

Harlan Ellison

From: M. Christine Valada, Esq., Attorney for Harlan Ellison.

Re: Harlan Ellison v. Stephen Robertson, America Online, Inc., RemarQ Communities, Inc., Critical Path, Inc., Citizen 513, and Does 1-10, Federal District Court, Central District of California Civil Case No. 00-04321 FMC (RCx)

THE NATURE OF THE CASE:

Ellison v. Robertson, et al., is a case of copyright infringement on the Internet. Unlike the Napster matter, which has garnered substantial press attention because the music industry as a whole took on the issue of wholesale infringement of recordings on the Internet, the piracy of text has been largely overlooked by the publishing industry and the popular press. The case is complicated by the Digital Millennium Copyright Act (DMCA), passed in 1998, which established certain limitations of liability for online service providers when third parties post infringing material to or through an online service. Because the law is so new, reported decisions citing to the various provisions of 17 U.S.C. 512 et seq. are minimal and this case, like the Napster case, the MP3 cases, and the DeCSS case are charting new ground for the legal system.

This case is important to all writers and to the publishing industry because it is on the cutting edge of legal issues which could drastically change the constitutional mandate to "secure for limited times to authors...the exclusive right to their...writings" and the ability of publishers to profitably copy or distribute those writings.

Fortunately for Harlan Ellison, since this memo was first drafted on February 2, two important decisions have been handed down by the Fourth and Ninth Federal Circuit Courts of Appeal which vindicate virtually every argument we have made for the protection of copyrighted material online. The media have covered the Ninth Circuit Napster Decision extensively. The Fourth Circuit decision, ALS Scan v. RemarQ Communities, Inc., is a resounding defeat for one of the Ellison defendants on similar facts and arguments of law raised in the Ellison matter.

FACTUAL AND PROCEDURAL BACKGROUND:

In April, 2000, Harlan Ellison was told that an individual using the screen name and e-mail address shaker@tco.net was scanning stories by him and other writers and posting them to a newsgroup called alt.binaries.e-book. (The designation alt.binaries means that it is a newsgroup where files of material are exchanged; there is relatively little discussion among the participants.) John Miller (former SFWA(R) secretary) and Susan Parris assisted in tracking the works which were copied to the newsgroup, which they received as part of the subscription to America Online. Four of Harlan's stories, all apparently scanned from copies of the Nebula Awards(R) anthologies, were identified as copied by "Shaker."

We learned that "Shaker" was actually Stephen Robertson, a 40-year-old living with his parents in Red Bluff, California. Although Robertson's ISP was Tehama County Online, TCO outsourced its newsgroup services to RemarQ Communties, Inc. TCO cooperated by blocking "Shaker's" account immediately upon notice of the infringing activities and revealing the services provided by RemarQ and was therefore not included in the lawsuit which followed.

The original complaint was filed on April 24, 2000. Stephen Robertson settled with Harlan almost immediately and is no longer a part of the case except for evidence he may have to provide during discovery and trial. The complaint was amended in late May and the Court permitted the filing and service of a second amended complaint in October.

We faced a series of procedural challenges to the complaint prior to answer by either AOL or RemarQ and its new parent company Critical Path, but we have prevailed and are now out of the pleading stage and facing the discovery phase.

AOL's original motion for dismissal or summary judgment on the first amended complaint was heard in July, and resulted in a temporary partial victory for AOL. However, the effect of this early ruling in favor of summary judgment on the copyright allegations has been essentially overruled by the Court's more recent ruling on AOL's motion to dismiss, or in the alternative for a more definite statement, the second amended complaint, which was heard in January and resolved in Harlan's favor. AOL's answer to the second amended complaint was due on February 5, 2001.

RemarQ/Critical path's original motion to dismiss or in the alternative for summary judgment on the first amended complaint was scheduled for hearing and moved several times before being declared moot by the Court when granting leave to plaintiff to file the second amended complaint at the end of October. [Note: RemarQ provides its Usenet newsgroup services under the name SuperNews; SuperNews remains one of the prime origination news servers for illegal material posted to alt.binaries.e-book.] RemarQ/Critical Path's motion to dismiss or in the alternative for summary judgment on the second amended complaint was denied by the Court in January. RemarQ/Critical Path answered the second amended complaint on January 26, 2001.

In its order of January 12, 2001, the Court demonstrates a better, but not complete, understanding of the DMCA than evidenced in July. What is important about this ruling is that it sets out that the analysis for a limitation of liability under the DMCA is fact-based and that online service providers must show that they have qualified for the limitation of liability by meeting threshold responsibilities. The ruling is now bolstered by the Ninth and Fourth Circuit decisions and a review of the January 5, 2001 tentative in the Ellison case indicates that it was even more in line with the subsequent Napster and ALS Scan rulings.

WHAT LIES AHEAD:

We are about to begin the discovery phase of this litigation. At issue are matters such as whether AOL or RemarQ/Critical Path fulfilled their duties under the DMCA for the limitations of liability, whether the defendants had prior knowledge of the infringing activities or ignored "red flags," whether the defendants are direct, contributory or vicarious infringers of the copyrights and whether their activities-or the activities they have failed to stop-also constitute unfair competition with Harlan. Interpretation of the DMCA is still an overriding issue here, and it is our position that AOL is arguing an impermissible extension of the law, which, if ultimately accepted by the Court, will make it impossible for anyone ever to prevail against an online service provider in copyright infringement litigation. We are also deeply disturbed by the RemarQ/Critical Path position that the wholesale copying of copyrighted works of fiction is "fair use." Or that it was necessary to copy all of the material to fulfill the public good of keeping the Internet operating. This is truly a death of copyright argument.

Fortunately for us, the Ninth Circuit Napster ruling makes it quite clear that the Ninth Circuit will not accept the position that the wholesale copying of copyrighted material is "fair use" or that somehow the First Amendment is violated by the Copyright Act. The Ninth Circuit relied on the same cases we did in our motion briefs to make its points on these two issues.

With the second amended complaint, we were able to add a complaint for vicarious infringement against AOL for the development of the Gnutella file transfer protocol by its Nullsoft division. Gnutella is Napster without a central processing hub. By setting up a "sting" operation, one of our investigators was able to track the infringement of several works by Harlan and Isaac Asimov using Gnutella. This presents interesting issues regarding the responsibility for the release of software which effectively pollutes the intellectual property environment.

We will face substantial expenses for depositions and electronic discovery. Because AOL's witnesses are likely to be in the DC area and RemarQ/Critical Path's are in the Bay area, travel will be required. Also, we will need to pay our expert witness(es) for their work and required reports. These out of pocket expenses are, of course, in addition to legal fees and it may be necessary to hire associate counsel, law clerks, or litigation paralegals to help with both responding to and promulgating discovery. Since opposing counsel have not taken a clue from these two recent decisions to open settlement negotiations, we fully expect to face tactics which will increase the cost of litigation for Harlan. In fact, AOL's attorneys notified us at a meeting of counsel on February 20th that they intend to file yet another motion for summary judgment on the issue of their limitation of liability under Section 512(a) of the Copyright Act, despite legislative history which shows that this section is inapplicable to newsgroups.

SFWA has allocated $5000.00 to help combat Internet infringement. Approximately 25% of this was paid to the attorney for the Heinlein estate who traveled to Russia in May and attempted to shut down some of the pirate archives established there which infringe on the works of many authors, including Harlan. Another 20% has been used to cover expenses in this case for DMCA subpoenas, online research charges, special research materials, service fees, messengers or incidental expenses. I intend to request the release of the remaining $2500.00 to defray upcoming expenses, including our continued attempts to identify the "Doe" infringers, but I know this money will not go far.

We are still attempting to identify and locate the individuals who have hidden behind false screen names and anonymous remailers to infringe on Harlan's work and on hundreds of other works of fiction. The individual we most want to identify, locate and serve with this lawsuit is Citizen 513, but there are others.

Citizen 513 was a RemarQ/SuperNews subscriber. We know that he has maintained an e-mail address in Canada called booklist@apexmail.com. Unfortunately, Apexmail doesn't require the use of a credit card to secure an address and Citizen 513 doesn't answer mail sent to him at this address. This address is for the receipt of electronic files of pirated works, so Citizen 513 can maintain his list of pirate works and other pirates request files from him. Citizen 513 had a web site with his list of works on Geocities for a while. He also had a server in Russia which stored the actual files (ftp://haali.po.cs.msu.su/enscifi/a.b.e-book), but we were able to shut that down. Sometimes, he gives the appearance of being in Australia and working for an electronic data company (hence his ability to get to unsecured servers) but we aren't sure of anything or even if he is male. Citizen 513 also appeared as anonymous@cotse.com and may also have used the name Worlock@supernews.com or "Swisslife" and others.

Other individuals who have posted Harlan's work include:

"Mindseye" aka mindseye@soma.com (a false e-mail address) meo@io.com
"Buckethead" aka buckethead21620@yahoo.com
"Earl Cravens" or ecravens@hdo.net the originator of http://www.macroscope.newmail.ru/books_in _english.htm
"Brains" aka removeallthisexcept_quantic@bigfoot.com or quantic@bigfoot.com

ALL OF THESE INDIVIDUALS HAVE BEEN IDENTIFIED AS DOE DEFENDANTS IN THE LAWSUIT.

We are constantly on the lookout for other individuals who post Harlan's works and the works of other science fiction and fantasy writers in alt.binaries.e-book and its mirror sites. It is difficult to police these places on a daily basis, so we rely on good Samaritans to help us keep on top of the pirates. For example, someone using the name "Robert Armbruster" recently set up a web site in a former Soviet republic which doesn't adhere to the Berne Copyright Convention. We think this person was actually in the U.S., but he's been hard to track down because he uses a European e-mail service to go into alt.binaries.e-book. Following our meeting of counsel on February 20th, I did another search of alt.binaries.e-book. My reader showed that there were 3998 NEW posts since I checked last week, including some of Harlan's work. This time the culprit was Baxtrom@home.com who is in the middle of uploading some 950 files to the newsgroup. These entries were made on February 18th. I have already sent notices to home.com, look.ca and idirect.com (the news service he appears to be using). THERE ARE OTHERS LIKE HIM AND WE WANT THEM ALL!

Any assistance you can offer will be greatly appreciated.

For any information on these individuals, please contact:
M. Christine Valada at:
PhotoLaw@ix.netcom.com (or)
Office telephone number: (818) 783-0281

For contributions to the case:
Kick Internet Piracy, Post Office Box 55935, Sherman Oaks, California 91413.
Checks to be made payable to: Law Office of M. Christine Valada.

Thank you.

Re:Harlan Ellison Fights for Creator's Rights! (2, Funny)

kwandar (733439) | more than 10 years ago | (#8486206)

Dammit Harlan, if you quit SHOUTING at us, we might actually listen!

Re:Harlan Ellison Fights for Creator's Rights! (1)

AndroidCat (229562) | more than 10 years ago | (#8486209)

Am I missing anything if I skip the shouting part in the first half? Oops, that would be all of Harlan's text.

Re:Harlan Ellison Fights for Creator's Rights! (1)

HrothgarReborn (740385) | more than 10 years ago | (#8486216)

Dude! Stop yelling. Get Scotty the drug dealer to give you some valium.

Re:Harlan Ellison Fights for Creator's Rights! (0)

Anonymous Coward | more than 10 years ago | (#8486229)

For a professional author, he doesn't seem to understand that ALL CAPS IS REALLY FUCKING ANNOYING TO READ.

STOP SHOUTING ALREADY (1)

blorg (726186) | more than 10 years ago | (#8486263)

Jeez Harlan, we know you're pissed, calm down and *take your finger off the SHIFT key* and people might be able to actually read what you have to say.

Original text from Harlan here [harlanellison.com] , perhaps someone reply with a bit of SHIFT-F3.

Aha! (3, Funny)

AndroidCat (229562) | more than 10 years ago | (#8486323)

I see the problem: His original email to AOL was probably ALLCAPS, so their spam-filter ate it.

now in normal case (0)

Anonymous Coward | more than 10 years ago | (#8486347)

For the past ten months my attorney, m. Christine valada, and i have been hip-deep fighting a legal battle, what we think is an extremely important case:

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.

Aol, remarq/critical path and a host of self-serving individuals seem to think that they can allow the dissemination of writers' work on the internet without authorization, and without payment, under the banner of "fair use" or the idiot slogan "information must be free." a writer's work is not information: it is our creative property, our livelihood and our families' annuity. Why should any artist, of any kind, continue creating new work, eking out an existence in pursuit of a career, following the muse, when little internet thieves, rodents without ethic or understanding, steal and steal and steal, conveniencing themselves and "screw the author"? What we're looking at is the death of the professional writer!

This is not only my fight, i'm not the only one whose work is being pirated. Hundreds of writers' stories, entire books, the work of a lifetime, everyone from isaac asimov to roger zelazny: their work has been thrown onto the web by these smartass vandals who find it an imposition to have to pay for the goods. (but gawd forbid you try to appropriate something of theirs...listen to 'em squeal!) The outcome of this case will affect every writer, editor, photographer, artist, musician, poet, sculptor, actor, book designer, publisher and reader. What we're looking at is the anarchy of ignorant thieves ripping off those who labor for an honest payday, because they conveniently honor the lie that everything should be theirs for the taking.

Look, this is your fight, too. If that demented, self-serving misunderstanding of the word "information" prevails, and every zero-ethic tot who wants everything for nothing, who exists in a time where e-commerce hustlers have convinced him/her that they're entitled to everything for nothing prevails, and they are permitted to believe information must be free, with no differentiation made between raw data and the creative properties that provide all artists of any kind with an annuity, to allow them to continue creating new work, then what we're looking at is the egregious inevitability of no one but amateurs getting their work exposed, while those who produce the bulk of all professional-level art find they cannot make a decent living.

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. Most creators practice their art because they love it. If it were only for the bucks, they'd fare better as dentists, plumbers, or steam fitters. I'm fighting for myself, of course, but i'm also doing this for avram davidson, who died broke; for roger zelazny, who had to work like a dog till the day he pitched over; and for gerald kersh, whose work was reprinted and pirated in sixty-five countries, while he had to borrow money from friends to fight off the cancer. This is your fight, too, gang... And now we need your help!

For the past ten months, my attorney and i have fought this alone. Although we are loath to ask, we do not have the endless deep pockets and lawyers (14 at the last count) that benefit large, arrogant corporations. We now need your financial help. As to the money being spent for the david-vs.-aol goliath lawsuit: yeah, it's been a bear. We're about forty grand out of pocket, and i've had to sell off a few personal possessions and magazine files to meet attorney costs. But we're about to enter the "discovery phase" of the litigation, and aol, remarq/critical path, et al are clearly trying to "paper us out," and what we've spent up to now will seem like a fart in a sirocco. So, yes, oh yes lawd, contributions are gratefully accepted in this fight to stamp out internet piracy.

To make absolutely dead certain that no one can even remotely suggest that contributions went anywhere but to fight this infringement of writers' rights, we are setting up a new post office box address, specially and only for receipt of contributions to what we are now calling kick internet piracy. And all checks must be made payable directly to our attorney, m. Christine valada, to help cover costs and legal fees. (and when we are asked, "well, what is kick an acronym for?" we respond, "it's for kick 'em in the ass!")

if you want to help protect your rights, and the careers of writers whose work you enjoy, please send your contribution-a few bucks, or a lot of bucks-to:

kick internet piracy
post office box 55935
sherman oaks, ca 91413

please make your check payable to:
law office of m. Christine valada

Fuck you, Harlan. (5, Insightful)

Anonymous Coward | more than 10 years ago | (#8486542)

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.

Re:Harlan Ellison Fights for Creator's Rights! (4, Interesting)

Anonymous Coward | more than 10 years ago | (#8486599)

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!

More info (5, Informative)

GillBates0 (664202) | more than 10 years ago | (#8486174)

Since I wasn't familiar with this case, a little searching on Google turned up the following links:

Harlan Ellison's webpage [harlanellison.com] :

From his NEWS page [harlanellison.com] he's been on a campaign to Kick Internet Piracy [harlanellison.com] .

According to this site [speculations.com] , 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?

HARLAN ELLISON WRITES IN ALL CAPS (-1, Troll)

adb (31105) | more than 10 years ago | (#8486308)

SO I CAN'T BUY HIS BOOKS ANYMORE.

Apparently Slashdot agrees, because the lameness filter insists that I write some more text like this even though it really kind of undermines the message of the comment. That's pretty lame, Rob. The lameness filter is lame. See the irony? Oh, man, that's deep.

Re:More info (2, Informative)

Anonymous Coward | more than 10 years ago | (#8486341)

Whether Harlan has a case here, and he may, remember who he is before climbing on a free speech or author's rights bandwagon with him. Harlan is much more concerned about *his* control over what gets published than about author's control, credit, or payment.

Look up the problems with Harlan's anthology "The Last Dangerous Visions", where Harlan got various copyright agreements with contributors, then violated them by never publishing the book but has never released the original works back to the authors so they can publish them elsewhere. That's theft.

Re:More info (1)

Dun Malg (230075) | more than 10 years ago | (#8486422)

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?

Perhaps the lower court thought that Mr. Ellison is a crackpot jousting at windmills, and that if all he could manage was to send a couple emails (apparently not bothered enough to send an actual letter or even pick up a phone), then he really couldn't say he'd held up his half of the DMCA requirements (in spirit at least). AOL was in violation of the letter of the DMCA, though, so (crackpot or not) Mr. Ellison was in the right.

That's right, but it's not in time. You lose. (4, Insightful)

LostCluster (625375) | more than 10 years ago | (#8486200)

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.

Usenet Precident (2, Interesting)

themaddone (180841) | more than 10 years ago | (#8486225)

What sort of precident does this set regarding USEnet?

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?

Re:Usenet Precident (4, Insightful)

Daniel_Staal (609844) | more than 10 years ago | (#8486312)

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.

Re:Usenet Precident (2, Informative)

LostCluster (625375) | more than 10 years ago | (#8486361)

Yes, but, under the DMCA, each ISP can dodge the lawsuit by filing with the copyright office the contact points at which they will take official DMCA takedown notices. So long as they actually take down what they're told to that way, they can't be held liable.

What happened here is that AOL got a notice to their registered e-mail address, and didn't do the takedown in time. They were 99% in compliance, but this went through the 1% hole in their lawsuit shield.

Nothing too drastic. (1)

Lando (9348) | more than 10 years ago | (#8486245)

Seems to me when first glancing at the headline that they were saying that AOL is responsible.

This is not the case, #include IANAL.txt, from what I can tell. It seems that the summary, ie just automatically granting AOL rights as a safe-haven was reversed... Instead the actual desision was remanded back to the court to look at to determine if AOL actually does qualify for that provision.

They also affirmed that AOL did not act in a vicious maner in reguard to the posting of the material and thus I assume that means no 3x actual penalties...

SCO Boardmember (1)

Falshrmjgr (264237) | more than 10 years ago | (#8486273)

Harlan, you and Darl need to stop copying one another's business models. He copies your publishing of fiction, and you realize that litigation is more profitable than work!

Shame on you both!

Re:SCO Boardmember (1)

zaunuz (624853) | more than 10 years ago | (#8486296)

Why cant people be nice to eachother?

AOL vs the DMCA (3, Insightful)

Greger47 (516305) | more than 10 years ago | (#8486329)


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 (4, Insightful)

btempleton (149110) | more than 10 years ago | (#8486330)

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.

complaining old man... (4, Interesting)

Vellmont (569020) | more than 10 years ago | (#8486352)

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!".

A fly on the wall of Ellison's attorney's office.. (2, Funny)

mikeophile (647318) | more than 10 years ago | (#8486355)

"No, Mr Ellison, I don't think the term motherfucker is appropriate to use in the lawsuit. Yes, even if it's fitting."



Love you Harley.

A new public funding model for artists... (3, Interesting)

expro (597113) | more than 10 years ago | (#8486540)

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.

What type of mail server do they use? (2, Interesting)

ThisIsFred (705426) | more than 10 years ago | (#8486643)

I mean seriously, why would registering the change even be an issue? I deal with these types of things every year when staff comes and goes, or people have their names changed. I use this really neat feature called an "alias". See, with an "alias", I can have more than one address point to the same inbox. That way, during the transition, the e-mail user has plenty of time to inform senders of the change, all without losing any important messages.
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