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AOL is being sued by science fiction author Harlan Ellison over
illegal copies of his stories that were posted to usenet. The
stories were posted from outside AOL but were stored for two
weeks on AOL's servers. (Ellison also sued the poster.)
The District Court had granted summary judgment to AOL based on
the DMCA "safe harbor" provisions. The court found that AOL had
a reasonable policy to terminate repeat infringers as required by
17 USC 512(i).
The Ninth Circuit reversed this week, holding that
1. AOL could be liable for contributory infringement since it
had been informed that the newsgroup was heavily used for
illegal activity.
2. Usenet messages stored for two weeks are "transitory" within
the meaning of the DMCA, and therefore eligible for safe harbor
in the same manner as cached files and files belonging to account
holders.
3. AOL's policy on repeat infringers may not be adequate to meet
the 512(i) requirements. AOL had changed its contact email address
and Ellison's lawyer's email to the old address was neither bounced
nor read.
A jury will decide whether AOL is liable.
The opinion is available on the Ninth Circuit web site
<http://www.ca9.uscourts.gov> and if it doesn't get mangled
in transit at the following unreasonably long URL:
<http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9B0A55634A78267788256E35007C151D/$file/0255797.pdf>
I'm slightly confused by this decision, or perhaps by the law.
Apparently AOL's liability for copyright infringement for
storing files posted from outside its system depends on its
having a policy to deal with repeat infringers on its own system.
--
John Carr (jfc@mit.edu)
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On Fri, 13 Feb 2004 14:40:05 -0500, jfc@mit.edu (John F. Carr) wrote:
I'm slightly confused by this decision, or perhaps by the law.
Apparently AOL's liability for copyright infringement for
storing files posted from outside its system depends on its
having a policy to deal with repeat infringers on its own system.
I'm confused by the Court's seeming ignorance. The description of Usenet as a
"peer to peer file sharing network" is particularly egregiously stupid.
"The copyright infringement action arose when, without Ellisons authorization,
Stephen Robertson posted copies of some of Ellisons copyrighted short stories
on a peer-to-peer file sharing network, the USENET."
This makes Judge Whyte's findings on what Usenet is in RTC v. Netcom, which I
found abysmal at the time, look cogent in comparison. Interestingly, they are
quoted in footnote 2 of this very decision:
"2 A news-group is an online forum for USENET users to discuss, read
about, or post messages on a particular topic. News-groups are commonly
organized around a particular shared interest, such as science fiction or
politics. See Religious Tech. Ctr. v. Netcom Online Communication Servs.,
Inc., 923 F. Supp. 1231, 1239 n.5 (N.D. Cal. 1995)."
RTC v. Netcom is, of course, the seminal Scientology-related case of online
infringement prior to the DMCA, and I have long believed that the DMCA and its
notification/takedown provisions wer at least in part inspired by the settlement
in RTC v. Netcom.
The finding about Usenet being a peer to peer network is so completely clueless
I can't imagine any reasoning based on such a factual misapprehension could
possibly be correct. It is dead opposite of the client-server paradigm which
more properly describes Usenet, not that I need to tell anyone here that.
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ptsc wrote:
The finding about Usenet being a peer to peer network is so completely clueless
I can't imagine any reasoning based on such a factual misapprehension could
possibly be correct. It is dead opposite of the client-server paradigm which
more properly describes Usenet, not that I need to tell anyone here that.
Well -- the servers are peers, and each client selects one or more
servers. Since AOL's position is as server, it may not be totally
incorrect.
--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.
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In article <nkvv20dse2cbhaaeahmkn1ri3l7cid8mqs@4ax.com>,
ptsc <ptsc@nowhere.com> wrote:
The finding about Usenet being a peer to peer network is so completely clueless
I can't imagine any reasoning based on such a factual misapprehension could
possibly be correct. It is dead opposite of the client-server paradigm which
more properly describes Usenet, not that I need to tell anyone here that.
I disagree -- I think "peer to peer" is a fine description of usenet
except for the last hop between ISP and newsreader -- but more
importantly the term used isn't relevant. The important facts
establishing copyright infringement are (1) AOL configured its
system to receive and pass on to others a certain category of
data, a newsgroup, and could easily undo that configuration,
(2) as a result of this AOL did in fact distribute copyrighted
works without required permission, (3) AOL may have had reason to
know that most of the content of the newsgroup violated copyright.
The facts required to use the "safe harbor" defense are found in
17 USC 512(a) and (i), and the term "peer to peer" is not used
in that section.
--
John Carr (jfc@mit.edu)
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On Sun, 15 Feb 2004, ptsc <ptsc@nowhere.com> wrote re. Ninth Circuit
decides Harlan Ellison v. AOL:
The [court's] description of Usenet as a "peer to peer
file sharing network" is particularly egregiously stupid
. . . [although, in related footnotes, the court also defines
"Usenet" for the purposes of the litigation as
"an abbreviation of 'user network' . . . . refer[ring] to
an international collection of organizations and individuals
(known as 'peers') whose computers connect to one
another and exchange messages posted by USENET users"
and also as] "an online forum for USENET users to discuss,
read about, or post messages on a particular topic . . . .
commonly organized around a particular shared interest . . . ."
The finding about Usenet being a peer to peer network
is so completely clueless I can't imagine any reasoning
based on such a factual misapprehension could possibly
be correct . . . . [because "peer to peer" as I here use
that term] is dead opposite of the client-server paradigm
which more properly describes Usenet, not that I need
to tell anyone here that.
As actually relevant to this lawsuit, two issues this poster's 'plaint
about what s/he says s/he "can't imagine" neglects (entirely!) to
explain are:
- How (IF at all) the poster's definitional quandary
is even minimally correct, if one reads both foot-
notes (not included by the poster) which actually
comprise the court's "description" of Usenet;
and
- Assuming as if correct for description-of-computers/
internet-purposes, the poster's preferred "paradigm"
of "client-serve" model, why and how so doing ought,
for LAW-related purposes, make any difference (one
way or t'other) for the issues actually decided by the
court in light of the specific statutory provisions actually
at issue in the lawsuit.
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"Arthur L. Rubin" <ronnirubin@sprintmail.com> wrote:
ptsc wrote:
Well -- the servers are peers, and each client selects one or
more servers. Since AOL's position is as server, it may not be
totally incorrect.
I think the point is that ISP's can avoid liability by coming within
the safe harbor provisions of the applicable statutes. But if they
get lazy they could have problems.
Stu
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