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Bless the Knowledge, Curse the Lesson: Harlan Ellison and Counsel Fight the Good Fight

Harlan Ellison

Photo: Rick Wyatt

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Monday, September 08, 2003

By Michael Helke

When the band Metallica filed suit against Napster for providing its subscribers with access to copyright-protected music, everybody scoffed. When Lars Ulrich and James Hetfield rolled onto Napster property like a couple Caesars crossing the Rubicon, clutching a stack of names of users who downloaded the band?s music, the collective yawn their action elicited could be heard from a space shuttle. Upon reflection, one understands the argument the group was making: it?s hard enough for most musicians to make a living without worrying about the distribution and sale of their work being taken out of their hands. Then again, Metallica wasn?t the sort of band that was idealistically placed to be making such proclamations. Considering the money they?ve charged their fans over the years for such items as tickets, CDs, and T-shirts (the counter-argument held), these mooks have the audacity to pick on some kid who put music on the Internet that only those with a high-speed connection can get? The public?s reaction to this ham-fisted assertion of ownership rights was, ?Lighten up.? Apparently the only thing Caesar crossed that day was the street.

Metallica?s overwrought agitation notwithstanding, the case against Napster was easy to decide. In the case against AOL, Inc. that attorney Charles Petit is prosecuting on behalf of author Harlan Ellison, the facts are, according to Petit, ?both a little more difficult to comprehend, and a lot more common[place].?

Disturbing, too. The technology similar to that underlying Napster?s success also enables what Petit identifies as ?a floating organization of pirates? to scan the contents of books by established authors like Ellison and post them online for anyone who wants them. Consider the fact that fewer individuals live above the poverty line solely from their writing than do those who succeed as professional athletes. (To rephrase, a brother from the South Side has a better chance of making the NBA cut than he does of becoming the next E. Lynn Harris.) This isn?t just unfair competition. For people like Ellison, whose livelihood depends upon his reprint sales, this is catastrophic.

Ellison is part of that razor-thin minority who earn a living from his writing, the collected editions of which number over 70 books; include such classics as ?Love Ain?t Nothing but Sex Misspelled? and ?Angry Candy;? and continue to earn him more awards than any human being knows what to do with. Although White Wolf Publishing and iBooks have done a fine job of re-releasing volumes that have fallen out of print, as part of a series called ?Edgeworks,? quite a few of them yet remain to receive the treatment.

Enter the pirates. Every month these people put out a list of books that can be obtained on the Internet. These works are under copyright; and, judging by the quality of the scanned material, reprint permission has not been secured. At last count, the number of pirated works exceeds 3,600 ? 2,500 of which fall within the category of speculative fiction (science fiction, fantasy, and horror), where Ellison?s corpus is usually slotted. The market value of pilfered editions exceeds $200,000; this also includes current favorites like J. K. Rowling?s Harry Potter books, in several different languages. ?We?re not talking about going deep into the archives to find stuff that?s out of print,? Petit said. ?That?s the excuse that?s often offered. If you take a closer look, however, that?s not what they?re doing.?

Petit identifies an ?inevitable tension? between the pirate and the pirated, between ?the personal beliefs of many people who have grown up in the Digital Age, who want information to be free, and [believe] that copyright is a tool used by big, evil corporations to suppress the rights of the consumers to read what they want; and the reality of how authors make a living and what the Copyright Act was founded upon.? Ellison is less than sanguine. ?It?s like talking to children,? he said. ?They think that if you can get stuff without paying for it, you should. I tell them, ?How am I supposed to make a living?? They say [nimrod voice], ?What about government funding?? Try telling them about the state of the National Endowment for the Arts, especially for people like me, who are critical of the government and provocative besides. They say, ?Well, maybe you can get funding from rich people.? In other words, find a way to become kept, like a courtesan. I tell them, ?Sorry, but last time I checked, the Hapsburgs and the Vatican weren?t distributing patronage like they used to.??

Whatever the prognosis, a problem exists that the book industry doesn?t fully appreciate. If they will not respond to it in some meaningful way, their doom is foreordained, and deserved, though this would mean the death of the career author (with no profits, why publish? Indeed, why write, if working for Roto-Rooter pays more?). If, however, they are genuinely unaware of this threat, then Ellison?s case is as instructive as it is epochal.

*****

The difference between the music and book industry copyright cases lies in ownership. In the case of the former, the artist controls the rights to the music and the label has dibs on the recorded performance. If, say, 50 Cent sampled, without permission, a track from Lou Reed?s ?Transformer,? Reed and RCA, the label which originally released the album, may agree to come down on him like a flyswatter. In book publishing, the author retains the copyright. This sounds nice on the surface. Realize, however, that the only person who can enforce his rights is the author. That costs money. A book company could afford the expense, but, unless the work they publish is a work-for-hire (that is, a work specially commissioned for publication), they are not obligated to shoulder the cost of litigation since they do not have direct standing to do so.

Petit faults the book publishers for not paying attention during the CD litigation, which began in 1994. ?[The publishing industry] should have paid attention to all the possible ways that electronic rights could be exploited and abused,? he said. ?However, in early interviews with publishing industry executives, shortly after we filed Harlan?s case [in 2000], we got a lot of ?What the heck are you talking about?? They did not understand what the problem was. And frankly, it was no skin off their nose, because it wasn?t their job. It was simply not in their realm of thought at the time.?

To better understand the bottom-line economic model about which book publishers seem clueless, let?s look at the clothing industry. In, say, Burma, a factory produces knock-off Air Jordans that cost a dollar and change to make and are sold for a hundred times that amount on American streets. The rightful owner of the Air Jordan copyright can fight this activity by making his product?s quality high and the price low. By doing so, he encourages the consumer to choose between the real deal and the copy that falls apart at the first drop of rain. Petit cites the movie industry as having absorbed this lesson better than others. ?Take a look at the real price in real dollars of a work in 1970 versus the price of a work today,? Petit said. ?CDs and books are about 25% higher, after you allow for inflation and such. Movie tickets are about 50% higher, after inflation, etc. However, going back to the late 70?s, when pre-recorded videotapes first became available, and comparing those prices to what is charged today, it?s about 60% lower. It is much less common to find pirated videocassettes around than it is to find [pirated] CDs.

?Partly because of the confusion over the whole CD issue,? Petit continues, ? [publishers have] failed to make its works available in an electronic form for the Digerati, who prefer to carry around sixteen books in their PalmPilot on the subway, instead of lugging around sixteen books. That?s the excuse often offered by the pirates: ?I want this is in a form that?s convenient to me, not in the form that the publisher is offering.?? It isn?t an excuse for such piracy, he stresses, but the publishers have been foolish not to tap into a potential market, and one that can be exploited quite cheaply at that. ?For their own reasons, they?ve chosen not to do so,? Petit said.

*****

The seeds of the lawsuit (Harlan Ellison vs. Stephen Robertson, AOL, Inc., RemarQ Communities, Inc., Critical Path, Inc., Citizen 513, and Does 1-10) were planted on April 2000. Ellison was then informed that someone with the e-mail address shaker@tco.net had scanned stories by him (particularly from an earlier edition of ?Sex Misspelled?) and posted them on a newsgroup called alt.binaries.e-book. ?Shaker?s? Internet Service Provider (or ISP), Tehama County Online (TCO), did not operate its own news service, having elected to outsource to RemarQ Communities, Inc. From RemarQ?s posting, the material found its way to AOL?s news services, where it was downloaded by a number of its customers, including Citizen 513, a RemarQ subscriber, and the Does, who are identifiable only by their e-mail addresses.

A cease-and-desist letter persuaded TCO to sever ?Shaker?s? access and provide full information on the user, in accordance with the Digital Millennium Copyright Act (DMCA). Other ISPs and news service vendors were contacted; they, too, complied.

RemarQ and AOL did not respond to attempts to contact them. Under the terms of the November 2002 settlement with RemarQ, a subsidiary of Critical Path, Inc., also named in the suit, Petit would not discuss why RemarQ failed to respond. (Critical Path did, however, arrange to develop software that allows Ellison to detect and delete unauthorized postings of his work as it surfaces. Petit is not at liberty to elaborate on this point, either.) In AOL?s case, Ellison?s then-counsel, M. Christine Valada, didn?t even receive bounce notices indicating failure to deliver the messages. It was later revealed that in October 1999, AOL changed the e-mail addresses from ?copyright at AOL.com? to ?AOL copyright at AOL.com? without informing the Library of Congress, a requirement of Section 512(c) of the DMCA. Six months followed this action, during which the scans posted illegally, and any attempt to report it to AOL was essentially dumped into a black hole.

Petit maintains that although the language of Section 512(i) of the DMCA does not require ISPs to be Internet cops, they do have to take steps to remove infringement from their services as it is identified. Moreover, ?it is not a reasonable implementation of any system to deal with a copyright issue by making it impossible to contact the people who are supposed to take care of the problem.?

The original complaint was filed on April 24, 2000. ?Shaker,? who was identified as Stephen Robertson, a 40-year-old man from Red Bluff, California, settled with Ellison and was dropped from the suit. As we know, RemarQ and Critical Path are out of the picture. Aside from Citizen 513 and the Does, who quite possibly might never be unmasked, this leaves AOL. The issue that will not only decide Ellison?s suit but will determine what parts of the DMCA are relevant, is how will the courts ultimately define the Internet? Is it a stored or a transitory communication vehicle? If the latter (identified under 17 United States Code, Section 512(a)), then a much lower knowledge requirement that AOL has to meet prevails, and the chance to find it liable is dramatically reduced. If, however the former argument wins out (Section 512(c)), that means that though the Internet may have transitory aspects (such as the peering process that transferred the scans between RemarQ and AOL?s server), once pirated material has posted for as far as a user can tell is an indefinite period of time ? longer than what most people would reasonably consider ?transitory? ? then AOL?s responsibility is large.

To put the matter bluntly: deciding the legal distinction will have consequences for how authorial works will be treated on the Internet. The latter decision would reinforce the implication that writing is a creative property, protected by copyright laws that must be dutifully enforced. The former would imply that such works are mere information, like anything else you encounter in cyberspace, and thus vulnerable to pilfering. Should this precedent obtain for a generation or more, we could very well witness the end of the career author.

The District Court in California initially decided with AOL, which means that, for now, the applicable part is Section 512(a). Though the decision was a setback, Ellison and Petit have forged ahead, and are currently awaiting a decision in the Ninth Circuit Court of Appeals in California. If necessary, they are prepared to take this fight as far as the Supreme Court, which means, of course, that the costs of litigation will increase substantially. If you wish to support their cause, make checks payable to the Trust of Kulik, Gottesman & Mouton and mail to: Kick Internet Policy, P.O. Box 55935, Sherman Oaks, CA 91413. For Internet donations, visit the Kick Donations page at http://harlanellison.com/kick/donate.htm.

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