February 2002 | All of us have that moment when we realize that some of our fellow adults fall short of, to put it mildly, "candor." Mine came when I served with the Congressional Sub-Committee on Oversight and Investigation. We were looking into an FDA directive that brought hundreds of millions of dollars in profits to a particular drug company. This directive was based on a report from an FDA doctor. During our hearing, the doctor testified that his field report was created in a single sitting and not multiple sessions. When questioned why then each line in the report was written in different ink, unabashed, he replied, "I am just a nut about colored pens."
I found this same challenge to "candor" in a digital content lawsuit currently being heard in California. When Congress passed the Digital Millennium Copyright Act (DMCA) in 1998, it contained language to protect content owners. Of course, none of us who create content were fooled into thinking that this would end piracy on the Internet. Rather, we thought it would at least guarantee us the tools we would need to rectify copyright violations as they occurred. Apparently, we were wrong.
Harlan Ellison, the flamboyant writer and futurist who filed the suit, claimed that his work has appeared almost in toto in such online locations as the Usenet e-book news group alt.binaries. and other sites as well. Naturally, such free-for-all piracy impacts his potential royalties on the stolen works. When he first learned of these violations in late 1999, he promptly followed the guidelines established in the DMCA to have the pirated material removed from such places as AOL and RemarQ (a Usenet access provider) by forwarding documented notification to those providers.
I should explain that the DMCA's Title II—"Online Copyright Infringement Liability Limitation Act"—outlines these guidelines. They mandate that ISPs are liable for monetary damages for piracy unless they take certain steps. For example, ISPs need to have a "reasonable mechanism" in place to receive and respond to reported cases of piracy in order to be protected from damage suits. (The DMCA does not require an ISP to actively screen material traveling through their systems for potential copyright problems. This currently would be an almost insurmountable technical challenge. Rather, it calls for ISPs to show an energetic response to properly identified violations.) Specifically, the Act requires that material posted without the copyright owner's permission be removed or blocked promptly once the service provider has been notified.
Unfortunately for Harlan Ellison, neither AOL nor RemarQ played by the rules.
AOL did provide an email address for reporting pirated works, but mail sent to that address bounced back as undeliverable. After months of attempting to communicate with AOL about the violations (with his works illegally remaining online), Ellison filed suit. Within a matter of days following the lawsuit's filing, AOL announced a new email address for reporting piracy. When asked why mail sent to the old address couldn't simply have been forwarded to the new one, AOL said, "We can't do that."
This certainly has to rank high in the list of curiosities—an ISP that cannot forward email from one address to another, particularly one with the clout and pedigree of AOL. (Perhaps that FDA doctor now is AOL's mail server admin?)
But a simple email address change is far from the most serious issue. Initially, AOL claimed that this wholesale duplication of copyrighted works was "fair use." Fortunately for copyright owners trying to prevent such misappropriations of their work, the Napster decision clearly stated that this type of copying is a violation of the Copyright Act. Now, AOL and RemarQ claim that they fulfilled their duties under the DMCA and are not required to remove the pirated works even when it is pointed out to them. In effect, as Ellison points out, this will "make it impossible for anyone ever to prevail against an online service provider for copyright infringement."
This is a serious challenge to the DMCA—even more serious than the claims of Napster and DeCSS defenders that it goes too far, or is inconsistent with earlier legislation. The point is moot if DMCA doesn't work as it was designed to, if it's hamstrung by circuitous logic, silly technicalities, and ISP indifference, and is thus rendered powerless to protect the rights of the developers and content creators it was enacted to serve. If service providers don't have to respond to reported piracy by removing the offending pieces, how are we to protect our work? We aren't asking whether AOL has an "affirmative duty" to analyze all incoming data (email, newsgroup postings, etc.) for pirated works; in the cases noted here, that work was done for them, and they still failed us. All we ask is that ISPs like AOL be responsive to reports of copyright violations and accordingly remove or block properly documented copyright violations from their systems. Anything less is simply unacceptable.
Ellison is, of course, pursuing any and all users who actually perpetrate such copyright infringement. His lawsuit covers numerous "John Does" as they are uncovered. In fact, he has already cornered and won a judgment against one arrogant pirate who defied Ellison to find him. The lawsuit, however, goes on. This is currently a one-man crusade and needs our generous support to continue. For details, see their Web site at www.harlanellison.com/kick. You can also donate through the site as well.