Metropolitan News-Enterprise


Wednesday, February 11, 2004


Page 1


Ninth Circuit Revives Science Fiction Author Ellison’s Suit Against AOL for Copyright Infringement


By DAVID WATSON, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday revived a copyright infringement suit by science fiction writer Harlan Ellison against America Online Inc. over the posting of some of his short stories in an Internet newsgroup.

The court said U.S. District Judge Florence Marie Cooper erred in granting summary judgment in favor of AOL, which provided access to the newsgroup “alt.binaries.e-book,” along with many others, to its subscribers. Ellison also sued Stephen Robertson, the man he claims posted the stories.

After discovering the postings, Ellison alleged his attorney contacted AOL and Robertson’s Internet service provider to demand their removal. AOL claimed it never received the communication.

After being served with the lawsuit, AOL blocked subscriber access to the newsgroup.

Cooper found triable issues of fact as to Ellison’s contributory infringement claim against AOL, but ruled the company qualified under the “safe harbor” provisions of the Digital Millennium Copyright Act and granted AOL’s motion for summary judgment.

That was error, Judge Harry Pregerson said in his opinion for a unanimous panel. He was joined by  Senior U.S. District Judge Louis F. Oberdorfer of the District of Columbia, sitting by designation, and Judge Sidney R. Thomas.

The safe harbor provision immunizes Internet providers who have “adopted and reasonably implemented—a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”

 Pregerson explained:

 “It is difficult to conclude as a matter of law, as the district court did, that AOL had ‘reasonably implemented’ a policy against repeat infringers. There is ample evidence in the record that suggests that AOL did not have an effective notification procedure in place at the time the alleged infringing activities were taking place.”

 Ellison presented evidence, he pointed out, that AOL changed the e-mail address to which infringement notifications were supposed to have been sent and failed to provide either for forwarding of messages sent to the old address or notification that the e-mail address was inactive.

“AOL should have closed the old e-mail account or forwarded the e-mails sent to the old account to the new one,” the judge declared. “Instead, AOL allowed notices of potential copyright infringement to fall into a vacuum and to go unheeded; that fact is sufficient for a reasonable jury to conclude that AOL had not reasonably implemented its policy against repeat infringers.”

Pregerson said, however, that Cooper was right in tossing out Ellison’s claim that AOL was guilty of vicarious copyright infringement. To prevail on that claim, he said, the author would have had to establish that AOL “received a direct financial benefit” from the infringement.

He declared:

“The record lacks evidence that AOL attracted or retained subscriptions because of the infringement or lost subscriptions because of AOL’s eventual obstruction of the infringement. Accordingly, no jury could reasonably conclude that AOL received a direct financial benefit from providing access to the infringing material.”

Cooper was also correct in concluding that there were issues of fact as to Ellison’s contributory infringement theory of liability, Pregerson opined. A jury should determine whether AOL qualified under the safe harbor provision and, if not, whether it was liable to Ellison on that theory, he said.

The case is Ellison v. America OnLine Inc., 02-55797.


Copyright 2004, Metropolitan News Company