Safe Harbor not a safe bet
If you remember back in July 2003, author Harlan Ellison filed a copyright infringement lawsuit, of both the various and contributory kind, against America Online for not acting fast to remove some of his stories without permission on an online fan forum carried by the service. America Online claimed that it was not to blame and that it removed the stories once it was aware of them; and in fact AOL was granted summary judgment because, as Judge Cooper of the C.D.CA found, AOL qualified for the DMCA safe harbor limitation of liability under 17 U.S.C. S. 512(a).
Today however, the Ninth Circuit reversed in part and remanded [pdf] the district court's grant of summary judgment with regard to the contributory copyright infringement claim and the AOL's qualification under the safe harbor provision of the DMCA. At issue was the fact that AOL allegedly failed to provide an appropriate email address for copyright holders to contact AOL regarding repeat infringers, which means that they may not be eligible for safe harbor 512(i)(1)(A) if they have not provided a policy that provides for the termination of subscribers and account holders of the service provider's system or network who are repeat infringers...
My take: District Court Judge reads the SJ motion and says << AOL is definitely not liable under the vicarious claim because "a substantial” proportion of a defendant’s income to be directly linked to infringing activities for the purpose of vicarious liability analysis," however, the contributory infringement claim is tricky because AOL knew or should have known and they stored "infringing copies of Ellison’s works on its USENET groups and providing the groups’ users with access to those copies", but wait AOL is an ISP. Safe Harbor. SJ granted. >>
Roundup: I Have No Rights And I Must Scream | Ellison Appeal and the 512 Standards
Update (6/10/04): America Online settled its lawsuit with author Harlan Ellison concerning the digital distribution of his works. Ellison's had alleged that AOL allowed unauthorized distribution of his writings. The settlement was quietly announced and the parties did not release the sum of the settlement.
Today however, the Ninth Circuit reversed in part and remanded [pdf] the district court's grant of summary judgment with regard to the contributory copyright infringement claim and the AOL's qualification under the safe harbor provision of the DMCA. At issue was the fact that AOL allegedly failed to provide an appropriate email address for copyright holders to contact AOL regarding repeat infringers, which means that they may not be eligible for safe harbor 512(i)(1)(A) if they have not provided a policy that provides for the termination of subscribers and account holders of the service provider's system or network who are repeat infringers...
My take: District Court Judge reads the SJ motion and says << AOL is definitely not liable under the vicarious claim because "a substantial” proportion of a defendant’s income to be directly linked to infringing activities for the purpose of vicarious liability analysis," however, the contributory infringement claim is tricky because AOL knew or should have known and they stored "infringing copies of Ellison’s works on its USENET groups and providing the groups’ users with access to those copies", but wait AOL is an ISP. Safe Harbor. SJ granted. >>
Roundup: I Have No Rights And I Must Scream | Ellison Appeal and the 512 Standards
Update (6/10/04): America Online settled its lawsuit with author Harlan Ellison concerning the digital distribution of his works. Ellison's had alleged that AOL allowed unauthorized distribution of his writings. The settlement was quietly announced and the parties did not release the sum of the settlement.
