11
Feb/04

AOL Loses Safe Harbor Protection in DMCA Case


The DMCA requires ISPs to implement a policy that terminates access to subscribers who repeatedly violate copyright.  Part of successful implementation involves providing a means by which a copyright owner can notify an ISP of a potential copyright violation.  In Fall 1999, AOL changed the email address that it had created to receive DMCA notices.  It didn’t tell the world about that change until April 2000, so for approximately six months notices to AOL regarding copyright infringements apparently fell into the ether (they must have enjoyed the peace and quiet for six months).

During that period, an AOL subscriber allegedly violated author Harlan Ellison’s copyrights.  Ellison brought vicarious and contributory copyright claims against AOL.  AOL claimed DMCA Safe Harbor protection.  District Court agreed with AOL and dismissed the claims against AOL.

The Ninth Circuit reversed and said that if there’s no working email for notice, then there may be no working copyright protection poilicy.  Go to trial and one of the issues will be whether there should be a DMCA Safe Harbor.

Ellison v. Robertson and AOL, No. 02-55797 (9th Cir. Feb. 10, 2004).

Btw, Ellison wrote a book in 1970 called “The Glass Teat” about TV, that’s worth reading.

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