Legal Issues

by Mike Masnick

AOL Pays Off Harlan Ellison To Shut Up And Leave Them Alone

from the go-away-now dept

Last year we wrote about the bizarre and pointless case that Harlan Ellison was bankrupting himself over when he discovered that someone had posted his writings to Usenet. Did he go after whoever posted the writings? No. He went after... AOL. Just like the story we had last week where a woman sued Cingular for a driver on a mobile phone hitting her, it looked like Ellison was just going after a random company with a lot of money. AOL had nothing to do with the posting of his work. AOL has nothing to do with Usenet. He just happened to see the posts via his AOL account and, not bothering to understand how the internet works, he sued AOL. After years of fighting, it looks like AOL just got fed up and has paid him off in a "settlement" to go away.

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  • identicon
    aNonMooseCowherd, 11 Jun 2004 @ 8:25am


    was just going after a random company with a lot of money...

    Isn't that the first trick they teach in law school?

    reply to this | link to this | view in chronology ]

  • identicon
    Mikester, 11 Jun 2004 @ 11:16am

    No Subject Given

    The real danger here is the potenial to set a precedent.

    reply to this | link to this | view in chronology ]

    • identicon
      Keith, 11 Jun 2004 @ 6:31pm

      Re: Precedent

      Perhaps, but how much do you want to bet that the settlement was for some insignificant amount?

      If HE was actually bankrupting himself over this, chances are that AOL just gave him a pittance because that's what he would accept.

      reply to this | link to this | view in chronology ]

    • identicon
      Dorman T. Shindler, 14 Jun 2004 @ 4:43pm

      Re: Ellison vs. AOL -- the consequences

      From What I've read and learned about the case -- legal briefs, articles, talks with Ellison and various lawyers on both sides of the aisle -- Ellison DID go after the pirates (several of them in fact, actually procurring monies from one of them), and the most important thing he got out of all this was to have AOL agree (like RemarQ) to set up software that would allow them to track pirates and cut internet thieves and abusers off at the wrist posthaste. I can't tell you what sort of software is involved -- I'm not a techno geek, sorry -- but I beieve Ellison and the lawyers when they say software is in place (or in AOL's case, soon will be). I also believe Ellison when he says that he would've been happy to sit down and work it out with the President of AOL/Time Warner (or, I'm sure, the right hand man, whatever) from the get-go. Instead, lawyers were called in. And I've heard that those same lawyers hired by AOL do not even try to settle a dispute until they've billed their clients at least 1 million dollars. AOL probably paid at least that over the last four years. From what I understand, AOL simply wised-up, realized that Ellison's demand -- software that would "police" the internet for thieves and pirates trying to take an author's works without paying for it -- was a request they could answer with little or no problem. In my opinion, though they'll not admit it publically, AOL screwed up from day one. After the ruling in Ellison's favor by the 9th Circuit in Feb. 2004, in my opinion, AOL realized it in spades -- and did the right thing. As for any "precedent" this ruling will set: it won't affect the exchange of information one iota. It WILL affect the idiots who believe that because they can make copies of a writer's story and distribute it widely (and do so relatively easily), they aren't, in fact, breaking any laws, aren't liable for their thievery, and shouldn't pay a fine (or do jail time in the most egregious cases). These are the same mooks who would scream bloody murder if someone walked into their home and stole their PC or their beloved Barry Manilow collection. --Dorman T. Shindler

      reply to this | link to this | view in chronology ]

  • identicon
    Steven Prete, 14 Jun 2004 @ 5:21pm


    Actually, you don't seem to have the facts concerning the Ellison lawsuit. He did go after the guy posting his work, but sued AOL because the guy was posting to usenet from AOL, and Harlan notified AOL about it, but they failed to block the man from doing so. He was not implicating AOL in the way you suggest.
    I understand your website is for digging up dirt, but please, try not to sling the mud.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn Weber, 14 Jun 2004 @ 7:08pm

    Ellison Suit

    That's a cute story, but the fact of the matter is that he did "go after" the posters. Nearly all relented. It's a matter of fact, go look it up-all the appeals, retorts and challenges are online. AOL's contention was that they did not have to "police" any of the postings on usenet groups....and that his copyright protection did not extend to their digital fortress. "Whattayagonnadosueus?" was their response and the heat was on. That actually began 4 years ago, when AOL had some clout, unlike the saggy, baggy, dead cow it is now. Read up on this shit before you go online with it---jeez!

    reply to this | link to this | view in chronology ]

  • identicon
    Barney Dannelke, 14 Jun 2004 @ 7:14pm

    No Subject Given

    Leaving aside for now what Ellison's motives were for suing AOL and what AOL's motives were for settling I thought I would address a few errors in fact with regard to this thread.

    It wasn't a story but rather about a half dozen of Harlan's stories that were posted. And not just random stories from his body of work but some of his most reprinted and most sought after material. His bread and butter stuff if you will. All of which was under copyright.

    Harlan did sue AOL but he also brought lawsuits against the original poster of the stories and the ISP of this copyright violator, Critical Path/RemarQ. Now you can debate until doomsday who is MOST responsible and who is LEAST responsible for breaking the law here but it's simply wrong to assume that Ellison exercised a bias for those with deep pockets. All were litigated against and all reached settlements with Ellison.

    I believe the original poster of the stories had an AOL account and that was where they came in. As to time constraints it had to do with how long AOL left the stories up on their servers AFTER they had been made aware of the infringement and [perhaps] after they said they would act on this.

    For other ACTUAL information on the case you could do a google search or just hit the links provided on Ellison's home page by his lawyer. There you can actually read the court proceedings and decisions which are a matter of public record. Or you can keep guessing and making things up that fit your simpler view of copyright law.

    As for your opinions regarding copyright and the law, well, the California 9th Circuit Court of Appeals disagrees with you.

    Regarding the issue of Ellison being a luddite, well he posts to the internet on a weekly and sometimes daily basis and has been doing so for a couple of years now. He has his own website and two forums for discussion. He chooses to compose stories and essays and letters on old Underwoods because he likes the spring and push and sound of the keyboard.

    He has co-authored a computer game and written essays for video gaming magazines, Future and Science Fiction Age. He has in his home a computer, a fax, and a color copier. HOW does this make him a luddite?

    - Barney Dannelke

    Smashingmachines, PA.

    reply to this | link to this | view in chronology ]

  • identicon
    Joseph Paul Haines, 14 Jun 2004 @ 7:26pm

    Ellison v. AOL

    Please. If you think it's pointless for an individual to go after an internet provider that continues to allow access to illegally posted copyright material after--let me repeat this so that you understand the concept--AFTER they've been informed of the problem, well then yes, it was pointless.
    That's like saying that we shouldn't prosecute someone who knowingly continues to sell stolen goods after they've been made aware of their origins. It's patently rediculous.
    So all you cry-babies out there who think everything should be free and have no fucking respect whatsoever for the rights of the people who create these stories and music and such for your entertainment, grow up and pay for your pleasure. If it ain't yours, keep your hands off.

    reply to this | link to this | view in chronology ]

  • identicon
    Alex Jay Berman, 15 Jun 2004 @ 12:03am

    Harlan Ellison Versus AOL.

    "Bizarre and pointless." "Random company." "Did he go after who posted the writings? No." "AOL has nothing to do with USENET."

    How nice to see that you've throughly researched the case. How good to note that you've studied the notion from all sides.

    Perhaps you don't realize that the AOL settlement is just the last gasp of a case which spanned several defendants, including Steven Donaldson (he who posted some of the writings), Critical Path/RemarQ, and AOL. Perhaps you were unaware that as the provider of the pirates' access to USENET newsgroups, that Critical Path/RemarQ and AOL were legally liable, as accessories, especially since Ellison--and many other writers whose work had been stolen under the false banner of "information wants to be free"--had complained to the companies in question, and nothing was done to stem the unauthorized posting, when avenues were more than available to these companies to halt thius illegal action.

    Or, more likely, perhaps you just don't care.

    That's okay; I understand that the sense of entitlement which many 'Net-savvy people my age and yours have, and from where it stems.

    But consider this: Let's say that SpeechWorks and Neotonic, along with all of Techdirt Corporate Intelligence's other clients, immediately turn around and, within minutes of receiving the daily information for which they are paying, suddenly post it all onto public webservers for all their competitors (and your potential clients) to see. Kinda would cut into your business, wouldn't it? Or if someone hacked a backdoor into your private corporate intelligence website, and began giving out all your intel and analyses to just anyone.. That would certainly put a crimp into your corporate wallet, wouldn't it?

    But that's all right, see--because, you know: "Information wants to be free."

    Perhaps you might feel differently, if this sort of thing happened to you ...

    reply to this | link to this | view in chronology ]

  • identicon
    Hank Maggitz, 17 Jun 2004 @ 5:28pm

    Harlan Ellison

    Jezus H. Murphy--that was one seriously twisted, backward spin you put on the Ellison/AOL settlement, knucklehead! You really don't know anything about this at all, do you? Ellison did creators and ditzes like you want to take him to task for it? For shame.

    reply to this | link to this | view in chronology ]

  • identicon
    Philip Shropshire, 18 Jun 2004 @ 9:22am

    It's the technology, stupid (not the litigation)

    Well I see the Webderlanders have attacked! And a fearsome lot they are.

    In a nutshell, the solution Harlan seeks is technical, not legal. If you really want to change the net, learn some code and figure out what a server does. I still think that I wrote the definitive anti-Kickstart piece here:

    Here's the excerpt wherein I even envisioned a triumphant Harlan victory...

    I see this lawsuit as ultimately damaging to Harlan Ellison's legacy. Frankly, I believe Harlan should know better. He should know better than to say that he's succeeded in policing the Internet because Critical Path allows him to access their servers 16 . No person would say that with a straight face who had any understanding of the principles behind the evolutionary net; Harlan's seat on the Critical Path servers has no effect on email attachments or peer to peer networking 17 (Harlan's going to police every computer on the net?), or Freenet 18, or kids running around with gig storage on their key chains. One of the galling aspects of Harlan's suit is how the artist formerly known as a science fiction writer could have so little basic understanding of where the Internet is going. It's moving into uncensored and untouchable Wi Fi networks 19 and encrypted router nexus points and vast anonymous intranets not to mention what may happen when nan and laser storage and ultra wideband hit the scene. You think it's hard to find those John Does 1-10 20? now wait until every Tom, Dick, and Harry has their own internet in a pocket. In other words, this lawsuit becomes more impractical by the moment as technology quickly leaps over the best intentioned of lawsuits as the plaintiffs in the Microsoft antitrust case are discovering.

    No Workable Remedies, or Delusion For A Dragon Slayer

    Now let's set motivations for the lawsuit aside. Let's imagine the best possible future for Harlan, that he wins the suit and gets a big settlement from AOL Time Warner. Does this mean the end of Internet Piracy, and does it ensure the rights of writers? Of course it doesn't. How do we know this? By looking at the wonderful success that the RIAA has had against Napster. True, they demolished Napster in the courts, but file sharing and file downloading is at an all time high 21. Why? Because there are dozens of replacements for Napster, including Fast Track, Kazaa, Music City, and Gnutella and many many more. As of December of last year, these file sharing companies exceeded the volume of downloading that Napster had at its peak.

    They're also harder to sue and shut down because they rely on a concept known as peer to peer networking, or decentralized computing. The owners are sometimes abroad. There was an attempt to shut down Kazaa in Amsterdam but the Dutch court ruled against the plaintiffs 22. Who does Harlan sue now and how would he shut down the servers in Amsterdam? Or data-haven-in-making Sealand 23? The answer is that he doesn't.

    It hardly needs mentioning that the recording industry has tons more money and lawyers than Harlan could ever have access to and they're losing. Oh, they won the battle against Napster, but they are decisively losing their war. So even if Harlan wins his suit, it's hard imagining that he could win his war. This is another reason why I can't support his lawsuit.

    reply to this | link to this | view in chronology ]

    • identicon
      Philip Shropshire, 18 Jun 2004 @ 9:26am

      Re: It's the technology, stupid (not the litigatio

      Also, just for kicks, someone should visit Kazaa or one of it's many brethren and do a search for Stephen King or Harry Potter. I mean, didn't they know Harlan won his lawsuit...

      reply to this | link to this | view in chronology ]

  • identicon
    Bob Bly, 8 Feb 2015 @ 5:06am


    The idea that Harlan or any other writer has to learn code or understand the Internet not to have their copyrights violated is absurd. In court, you can sue all parties involved in causing the damage. Here, that includes the guy who posted it, usenet, AOL, and any other entity that cooperated in making Harlan's copyrighted stories online. If he found them via AOL, AOL is guilty. I believe AOL settled with Harlan for $320,000.

    reply to this | link to this | view in chronology ]

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