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9th Circuit reinstates writer's copyright lawsuit against AOL

By The Associated Press
02.11.04

SAN JOSE, Calif. — A science-fiction writer who sued America Online Inc. three years ago after his short stories were widely posted on an Internet news group will finally get his day in court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals yesterday partially reversed a lower court ruling that dismissed Harlan Ellison’s copyright infringement case against AOL.

In his April 2000 lawsuit, Ellison alleged the Internet service provider violated his copyrights by allowing unauthorized copies of his work to remain on its Web servers for two weeks even after he tried to notify them of the problem.

The appeals court said a trial should be held to determine whether AOL was partly responsible because evidence suggested AOL’s complaint process was flawed. As a result, AOL allegedly did not meet the legal criteria that would normally shield Internet service providers from copyright infringement liability.

“AOL allowed notices of potential copyright infringement to fall into a vacuum and to go unheeded,” Judge Harry Pregerson wrote. “That fact is sufficient for a reasonable jury to conclude that AOL had not reasonably implemented its policy against repeat infringers.”

The appellate court agreed with the lower court, however, that AOL fundamentally still qualifies for provisions in the Digital Millennium Copyright Act that protect ISPs from litigation based on the mere fact they could serve as a conduit for illegal material.

“AOL may have lost this battle, but ISPs won the war,” said Jonathan Band, a copyright expert and lawyer who helped draft the DMCA.

Still, the 69-year-old Ellison was “overjoyed” with yesterday’s ruling, calling it a “small victory” in a long battle that has already emptied his retirement fund.

He said he took on AOL “to protect the lifeblood of freelance writers” against unchecked piracy on the Internet. He maintains that AOL should have acted more quickly to remove the unauthorized copies of his work from its Usenet servers.

“AOL provided a safe haven for the pirates,” Ellison said in a phone interview from his Southern California home.

AOL officials said they do take copyright infringement complaints “very seriously” and were pleased that the appellate court’s ruling upheld the ISP’s fundamental protection under the DMCA.

“With respect to the narrow factual issues that remain, those will now be decided at the lower court, where we believe we will prevail,” said AOL spokesman Nicholas Graham.

He declined further comment.


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Asking permission to copy and disseminate another's work may be an 'inconvenience,' but is not a 'substantial burden on the exercise of religion,' judges say. 09.27.00

Critics: Copyright law turns ISPs into speech police
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