Harlan Ellison won a slight victory in his battle to destroy the Internet.
Ellison sued America Online a couple of years ago, after a guy Stephen Robertson posted some of his stories on a Usenet group called alt.binaries.e-book. AOL wasn?t Robertson?s Internet service provider, nor did he use AOL for Usenet access. But AOL gave its users access to Usenet (just like most other halfway decent ISPs) and cached Usenet posts for a couple of weeks. So Ellison claimed AOL was helping to rip off his works.
A District Court shot down Ellison?s suit, saying that a 1998 law protected AOL from liabilities. But now an Appeals court has overturned part of the District Court ruling and sent it back for more consideration. If the District Court decides AOL isn?t protected, it could make life difficult for ISPs everywhere.
In the Digital Millenium Copyright Act, Congress gave ISPs safe harbors from litigation for four common activities, including ?system caching? and ?information residing on systems or networks at the direction of users.? But you only get to take advantage of these safe harbors if you take reasonable measures to curb copyright infringement, including terminating repeat infringers.
AOL messed up ? the ISP changed the email address for reporting copyright violations from to . AOL forgot to notify the Copyright Office of the new e-dress for months, and didn?t check the old addy.
So the Appeals Court partly agreed and partly disagreed with the District Court ruling that let AOL off the hook. The Appeals Court found that AOL couldn?t be liable for contributory infringement (helping someone else to break copyright law) because AOL didn?t profit from it. But it?s not so clear-cut that AOL is protected from litigation by the DMCA safe harbors, due to its bumbling copyright protection measures.
If AOL?s incompetence leads to a new ruling that the DMCA safe harbors don?t protect it after all, this could be an important precedent that leaves other ISPs open to copyright lawsuits for passive activities like offering Usenet access.
