LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Cases of Note — Copyright Contrib Infringement - Safe Harbor Column Editor: Bruce Strauch (The Citadel, Emeritus) <[email protected]> HARLAN ELLISON V. STEPHEN ROB- Anderson and AOL Contrib Infringement ERTSON AND AMERICA ONLINE INC. Around April of 2000, Stephen Robertson For Ellison to win, he must show AOL UNITED STATES COURT OF APPEALS posted four Ellison (copyrighted) short stories knew infringement was taking place and con- FOR THE NINTH CIRCUIT, 357 F.3d 1072; on the USENET, a peer-to-peer file sharing tributed to it. 2004 U.S. App. LEXIS 2074. network. The particular USENET newsgroup Knowledge Harlan Ellison (b. 1934) has published — alt.binaries.e-book — was primarily a vehi- over 1,700 short stories, novellas, screenplays, cle for exchanging unauthorized digital copies Incredibly, AOL had changed its contact comic book scripts, teleplays, and essays. He’s of works by famous authors. email address but waited some months to won Hugos, Nebulas and Edgars. Famous register the change with the U.S. Copyright AOL subscribers are given access to Office and failed to configure the old address novels include Web of the City, Spider Kiss, The USENET, so Ellison emailed AOL, warning Starlost, A Boy and His Dog. Whew. to forward new messages. Which was why of the infringement in compliance with notifi- they didn’t get Ellison’s notice. He was expelled from Ohio State for belt- cation procedures of the Digital Millennium ing a professor who belittled his writing skills. Copyright Act (DMCA). He got no reply. Further, AOL had received a phone call And he proceeded to send said prof a copy of AOL claims to have not received it. from a subscriber telling them of infringing activity on the alt.binaries.e-book group. each and every story he published. Which it hadn’t. But there’s a reason for it They don’t address whether a lone phone He refuses to use a computer and types as you’ll see below. on a manual typewriter. He voiced himself call to a behemoth corporation should trigger Ellison sued Anderson, and included AOL knowledge. But that’s why it’s a jury question. on the Scooby-Doo! Mystery Incorporated. for vicarious and contributory copyright in- The episode “The Shriek- fringement. Upon receipt of ser- Material Contribution ing Madness” was H.P. vice of suit, AOL blocked users’ AOL provided a service that automatically Lovecraft inspired. access to alt.binaries.e-book. distributed all USENET postings, infringing And he was in a scene At the trial court level, AOL and noninfringing when it knew of the infring- with Milhouse on The ing stuff. This can be a material contribution, Simpsons. got summary judgment on direct and vicarious copyright making for a triable issue. Religious Tech. Ctr. Yes, what a char- infringement, but was told v. Netcom On-Line Communication Servs., acter. He has some contributory infringement was Inc., 907 F. Supp. 1361, 1375 (N.D. Cal. 1995). famous quotes. a triable fact. BUT, the safe Vicarious Infringement “The two most abundant things in the uni- harbor limitation of liability under the DMCA verse are hydrogen and stupidity.” blows that claim away. Ellison must show AOL received a direct “People who can’t get laid watch star trek financial benefit from the infringement and had and eat twinkies.” The Appeal the right to supervise the activity. “Love ain’t nothing but sex misspelled.” You are contributorily violating copyright AOL’s future revenue depends upon a if you induce, cause or materially contribute growing userbase. While the infringing group “You are not entitled to your opinion. You to infringement. A&M Records v. Napster, might be a small portion of AOL’s vast reve- are entitled to your informed opinion. No one Inc., 239 F.3d 1004, 1013 (9th Cir. 2001) nue, it can still be liable without regard to size. is entitled to be ignorant.” (Napster II) Indeed, almost any unit of their services might In 1962 he began churning out screen- You are vicariously liable for infringement seem relatively small next to the whole. plays for The Oscar, The Loretta Young if you enjoy a direct financial benefit from But was the infringing activity a draw for Show, The Flying Nun, Burke’s Law, Route another’s infringement and have “the right and subscribers? Ellison could not show AOL 66, The Outer Limits, Star Trek, The Man ability to supervise” the activity. Napster II, attracted customers by ripping off his stories from U.N.C.L.E., Cimarron Strip, The Alfred 239 F.3d at 1022. nor could it show it lost them when the in- Hitchcock Hour. fringement was lost. Widely known to be argumentative, he But … Safe Harbors? Good grief. What exhaustive discovery assaulted an author at the Nebula Awards Congress wrote Title II of the DMCA, would have to be undertaken to prove this? banquet, sent 213 bricks to a publisher postage Online Copyright Infringement Liability But the vicarious claim flopped. due, and a dead gopher to another by slow mail. Limitation Act (OCILLA) 17 U.S.C. § 512 And he’s sued various people. (2003) to get cooperation between copyright Leaving contrib still alive but for … Which leads us to our case. And another owners and Internet service providers. OCILLA’S Safe Harbors known quote on copyright thieves: “If you put To give greater certainty of legal exposure To be secure in a safe harbor, a service your hand in my pocket, you’ll drag back six to service providers, it created a series of “safe provider must have a termination of services inches of bloody stump.” harbors” for ordinary activities. continued on page 50 Against the Grain / June 2018 <http://www.against-the-grain.com> 49 Questions & Answers — Copyright Column Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193) <[email protected]> www.unc.edu/~unclng/gasaway.htm QUESTION: A middle school teacher are not mentioned in the statute, the section’s purposes only.” FedEx is a commercial en- asks whether it makes a difference if she wording indicates that new types of works can terprise and FedEx concedes that its copying prints copies of an article for each student be protected under these eight broad categories, services are commercial in nature, and that its in her class or simply provides a link to an and this has occurred. For example, in the early reproduction would be impermissible under online version of the article for her students. 1980s, courts held that video games (not men- the license if FedEx were acting as a direct ANSWER: While printing copies of the tioned in section 102(a)) were copyrightable licensee. articles for students is likely a fair use, there as audiovisual works even though the sounds The court found that Great Minds’ license is a difference in printing versus providing a and images varied based on manipulation by did not explicitly address whether licensees link for students to access the article. Printing the players of the games. Therefore, there is may engage third parties to assist them in ex- concerns the reproduction and distribution unlikely any difficulty with claiming copyright ercising their own noncommercial use rights rights of the copyright owner, and fair use is protection for these works. As with other types under the license. Due to the absence of any an exception to that right. Providing a link of works, these works must be registered for clear license language to the contrary, licensees implicates no right of the owner. copyright in order for to sue infringers. Some may use third-party agents such as commercial There are practical reasons for choosing one speculate that enforcement of copyrights in VR reproduction services in furtherance of their over the other. Printing copies of the articles works may be more difficult, however. own permitted noncommercial uses. In this for students makes sense when each student Of more concern are VR created solely case, because FedEx acted as the mere agent needs a copy in front of them for a specific through artificial intelligence without human of licensee school districts when it reproduced classroom activity. Not all students may have intervention. In the United States, only human Great Minds’ materials, and because there was access to computers or the internet. Further, the authors qualify as authors for copyright purpos- no dispute that, the school districts themselves online link may not allow printing but merely es so works created by machines or animals are sought to use Great Minds’ materials for other reading on screen. On the other hand, relying not eligible for copyright protection. than permissible purposes, FedEx’s activities on a link helps train students to use the Internet QUESTION: A college librarian asks did not breach the license or violate Great and is most useful when students can read from whether schools are permitted to hire com- Minds’ copyright. the screen or print at the student’s choice. mercial copy shops to produce materials for QUESTION: An archivist asks about QUESTION: A college art librarian asks the classroom that were obtained under a archival works that enter the public domain about virtual reality art creations and whether Creative Commons license. and what are the circumstances under which they qualify for copyright protection. ANSWER: This issue was recently ad- a user must seek permission from the archives ANSWER: To date, virtual reality (VR) dressed by the Second Circuit U.S.