After more than two years of litigation and an estimated $260,000 in legal fees paid by author Harlan Ellison, a district court judge in Los Angeles has dismissed charges of direct and vicarious copyright infringement against America Online and ruled that the online service provider has only a limited liability for third-party copyright infringement under the Digital Millennium Copyright Act.
AOL, which had asked for summary dismissal, has hailed the ruling. But lawyers for Ellison claim that while the judge dismissed two of three charges, she has yet to issue a final ruling on the third charge of contributory copyright infringement, or having knowledge of infringing material and not acting to remove it. Charles Petit, lawyer to Ellison, was adamant that "this case has not been dismissed."
This was the latest in a series of rulings on a lawsuit filed by Ellison in 2000 to force online service providers to monitor their servers for unauthorized copies of copyrighted material. Ellison has found many of his works posted illegally on the Internet. He first sued an individual for scanning six of his stories and posting them to alt.binary.ebooks, a newsgroup specializing in unauthorized digital texts. Later, Ellison also sued Remarq and Critical Path, two OSPs that provide access to the newsgroup in question.
Ellison and his lawyer claim that as many as 3,000 copyrighted books are regularly and illegally circulated through alt.binary.ebooks. But online service providers such as AOL claim that they are common carriers--like the telephone company--and thus are immune from liability under the DMCA. Ellison contends that the DMCA requires OSPs to exert a reasonable effort to monitor for unauthorized material in order to qualify for the liability limit.
Ellison told PW that his suit demands that AOL "do what they say they will do: provide a contact person 24/7 who will take pirated stuff down within 24 hours of notification or provide us with software to take it down ourselves."
"DMCA requires that OSPs have a valid policy in place to receive complaints and remove pirated copies," said Petit. "We contend that AOL does not have a valid policy." Petit told PW that he expects the court to issue a complete ruling in the next few weeks. "The fat lady has not sung," said Petit.
Other legal and publishing experts contacted by PW were supportive of Ellison, but suggested that he was trying to impose "an impractical level of liability" on OSPs, according to copyright expert Mark Radcliffe.
Allan Adler, v-p for governmental and legal affairs for the AAP, told PW that Ellison faces two hurdles. The infringers are not "large scale for-profit enterprises," he said, but scores of individuals. And he pointed to the somewhat ironic legislative compromise that created the DMCA's liability limitation. Under the DMCA, said Adler, OSPs are required to have a policy on infringing material, but they are not necessarily required to block or penalize violators. In fact, Adler said, a policy that forced OSPs to block access for infringers would "disincentivize" OSPs from taking any action at all.
But Adler also emphasized that Ellison has "a legitimate issue. A ruling of contributory infringement against AOL would establish that OSPs can be liable under certain circumstances and would force AOL to acknowledge its responsibilities."
