|
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.
|
| |
| |
Try this link as well:
http://caselaw.lp.findlaw.com/data2/circs/9th/0255797p.pdf
Discusion here as well:
http://yro.slashdot.org/article.pl?sid=04/02/11/1355212&mode=thread&tid=103&tid=120&tid=123&tid=187&tid=99
Posted by timothy on 09:34 AM February 11th, 2004
from the one-man-not-to-have-against-you dept.
mbstone writes "The U.S. Court of Appeals for the Ninth Circuit ruled that
sci-fi author Harlan Ellison can go ahead with his DMCA lawsuit against
AOL. Seems somebody posted some Ellison stories to Usenet, AOL made 'em
available, Ellison complained, and AOL blew him off."
Note that Ellison has yet to win a copyright suit against AOL. What he
won was the right to _try_ to sue them after the lower court tossed his
case in the round file.
Also note that the 9th circuit itself has the highest record of its own
decisions being overturned. Allowing email to be a valid and final form
of legal service is really really stupid for so many reasons. Even if AOL
had shifted their email address, it's not like AOL is unreachable via
normal channels and email comes with no guarantee that it works or that
the sender will get any kind of notice that his email wasn't received.
By then courts are so far behind the times, they probably allow faxed
signatures to be valid.
dmca@aol.com.spam.eu wrote:
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/9B0A55634A78267788256E350
07C151D/$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.
|
| |
| |
dmca@aol.com.spam.eu wrote:
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.
AOL doesn't address spamming complaints though they must be flooded with
them every day. It seems to me that all mail sent to the company simply
gets held and then deleted without being read with possibly someone just
scanning subject lines and culling out the one from ten thousand that
comes in every day for actually being read.
The Judicial rulings should have included the technology that allows
such companies to be flooded with little hope of seeing actual DMCA
notices and complaints. The notification by email isn't enough: companies
have inbound email boxes that are stuffed with spam complaints, spams,
and virus files.
---
CAUTION: Reading these Scientology "secrets" will give you pneumonia:
http://sf.irk.ru/www/ot3/otiii-gif.html http://w4u.eexi.gr/~antbos/XENU.HTM
|
| |
| |
dmca@aol.com.spam.eu wrote:
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.)
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.
Ellison is trying to sue the news stand. That is how usenet servers are
perceived.
However, the court argue that once a service has been notified that a work
has been infringed by a poster, then ignores and does nothing, the server
could possibly be held liable.
But what about the other 40,000 servers on to which the article has been
posted as well?
That is why "you can not sue the news stand".
The news stand is acting as a business within itself and only makes
available the printings of the publisher.
It is the publisher that must be sued.
The Ninth Circuit also has a long record of being over turned.
Will they get it right this time?
In New York, investigators of a child pornography ring, tried to include a
news service as being the main outlet and distributor of the items. After
all was said and done, the news server was back in business.
It is not physically possible for the owner of a news server to screen each
and every post within a 100,000 groups and god only knows how many postings
per day.
|
| |
| |
"Richard" <anonymous@127.000> wrote:
However, the court argue that once a service has been notified that a work
has been infringed by a poster, then ignores and does nothing, the server
could possibly be held liable.
AOL was never notified. Complaints were sent to their email address,
though, however they apparently never read the complaints, probably
because they get thousands of spam complaints, spam, and virus blocks
every day.
---
CAUTION: Reading these Scientology "secrets" will give you pneumonia:
http://sf.irk.ru/www/ot3/otiii-gif.html http://w4u.eexi.gr/~antbos/XENU.HTM
|
| |
| |
On Sat, 14 Feb 2004, "Android Cat" <androidcat99@hotmail.com> wrote in
part:
[N]ote that the 9th circuit itself has the highest
record of its own decisions being overturned.
This statement is so often made (mostly by right-wing ideologues) that
it is too often overlooked that it is virtually meaningless and, to
the extent that it can be measured more or less objectively, it is
incorrect in fact.
As 9th Cir. Judge Hawkins wrote in a letter published in the Wall
Street Journal,
"The actual numbers are available for the rate at which
the Supreme Court 'slapped down' the lower courts in
the last Term. The average reversal rate was 74%. The
rate for the Ninth Circuit was 75% (same as the Sixth);
four circuits had 100% reversal rates (Second, Fourth,
Fifth & Tenth); and state supreme courts were reversed
81% of the time."
But (as noted) even Judge Hawkins otherwise correct summary is
questionable, though _not_ because,as the poster above asserts, "the
9th circuit itself has the highest record of its own decisions being
overturned" but, instead, because it is hard to agree on what
population-related, case-subject-matter, and the related criteria
ought be to defined what "overturned" in comparison with other
circuits actually ought mean.
Note, meanwhile, that the above poster does not say that the 9th
circuit is the most "overturned" in _copyright_ and related (e.g.,
DCMA) cases.
[In the Ellison case, a]llowing email to be a valid and
final form of legal service is really really stupid
for so many reasons. Even if AOL had shifted their
email address [for notifying it of infringement claims
for the purpose of DMCA "safe harbor" protection or
not], it's not like AOL is unreachable via normal
channels and email comes with no guarantee that it
works or that the sender will get any kind of notice
that his email wasn't received.
Though s/he apparently has read the 9th cir. decision referred to, the
poster above seems to have forgotten to note that the court's decision
says that one factor in its ruling directing a trial was that there
were attempts to notify AOL "via normal channels" (e.g., telephone
calls) which AOL also (to use the poster's terms) "blew off".
By then courts are so far behind the times,
they probably allow faxed signatures to be valid.
Why aren't there many cases in/for which a FAX signature ought be
"valid"?
|
| |
| |
On Sun, 15 Feb 2004 16:05:07 GMT, FredR@SkepticTank.REMOVE.ORG (Fredric
L. Rice)
"Richard" <anonymous@127.000> wrote:
AOL was never notified. Complaints were sent to their email address,
though, however they apparently never read the complaints, probably
because they get thousands of spam complaints, spam, and virus blocks
every day.
Didn't you already say that?
---
CAUTION: Reading these Scientology "secrets" will give you pneumonia:
http://sf.irk.ru/www/ot3/otiii-gif.html http://w4u.eexi.gr/~antbos/XENU.HTM
|
| |
| |
"Fredric L. Rice" wrote:
"Richard" <anonymous@127.000> wrote:
AOL was never notified. Complaints were sent to their email address,
though, however they apparently never read the complaints, probably
because they get thousands of spam complaints, spam, and virus blocks
every day.
It seems that AOL changed their mailing address for copyright
violation reports, but never posted the new address.
|
| |
| |
Richard wrote:
dmca@aol.com.spam.eu wrote:
Ellison is trying to sue the news stand. That is how usenet servers are
perceived.
However, the court argue that once a service has been notified that a
work
has been infringed by a poster, then ignores and does nothing, the server
could possibly be held liable.
But what about the other 40,000 servers on to which the article has been
posted as well?
I agree, and I would add the following:
How in the world could a usenet sever possibly comply
with this requirement? should they just automatically
cancel any posts if somebody, anybody, *claims* that
is is a copyright infringement? I think this
would make it impossible for AOL to operate.
That is what TROs are for. What if somebody
abuses this policy to censor free political
speech ??? How could we catch the false
complainer considering there is no way to verify
the identity of the sender of an email ???
This is an Outrage !
At the very minimum, the request to pull the
post should be from a letter with a notarized
signature, and the identity of the complainer
should be forwarded to the poster, so that the
poster can sue the complainer if the complaint
is politically motivated.
|
| |
| |
On Mon, 16 Feb 2004 08:49:52 -0800, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> in misc.legal, wrote the following:
"Fredric L. Rice" wrote:
It seems that AOL changed their mailing address for copyright
violation reports, but never posted the new address.
Heck, AOL changed their TOS violation and spam complaint e-mail
address/es years ago (like over 5) as well, and never posted the new
addresses for those, either. Still don't have them posted today.
Funny that. It's as if they didn't want to hear from the public via
e-mail, or something. ;)
--
Katherine Griffis-Greenberg, J.D.
(who is so old to actually recall when AOL's Steve Case used to answer
e-mail sent to him)
--
Katherine Griffis-Greenberg
Oriental Institute
Oriental Studies Doctoral Program [Egyptology]
Oxford University
Oxford, United Kingdom
http://www.griffis-consulting.com
|
| |
| |
Katherine Griffis-Greenberg wrote:
On Mon, 16 Feb 2004 08:49:52 -0800, "Arthur L. Rubin"
<ronnirubin@sprintmail.com> in misc.legal, wrote the following:
Heck, AOL changed their TOS violation and spam complaint e-mail
address/es years ago (like over 5) as well, and never posted the new
addresses for those, either. Still don't have them posted today.
I was trying to explain the reason the 9th circuit stated that
that AOL might not be protected by the DMCA, which was the finding
of the lower court.
There are still a few issues for the lower court to determine
before the case is appealed again.
Funny that. It's as if they didn't want to hear from the public via
e-mail, or something. ;)
|
| |
| |
|
