AOL has settled with Harlan Ellison regarding his four-year-old copyright suit.

You’re seeing straight. Your senses do not deceive. The Davidian Harlan Ellison has defeated the goliath AOL in a dangerous game that has proved, once more, a good little man can beat a bad big man (or a monstrously HUGE corporation) if he’s willing to stand his ground. And stay the course.

Is Harlan gloating about his victory? Not by a long shot. He’s relieved. Even spiritual.

“You never hear me talk like this, Clifford,” he told me before the victory was assured. “but I feel like there’s a principle in the universe that resonates with one’s resolve. This was something I had to do. I just decided that I couldn’t lose and that was it.”

This morning, Harlan was even more magnanimous. “I have no animus toward AOL,” he told me. “In my opinion, after the initial advisement of an existing problem, they did what almost any gigantic corporation would do: they put it in the hands of outside attorneys who, in hindsight, seemed to me to have had their own exorbitant hourly billing interests more at heart than the best interests of their client. These four years, I think, show that even a mammoth corporation like AOL, whose intentions are good, become the victims of rapacious self-interested attorneys.”

It’s a generous statement. Harlan doesn’t want to be a sore winner. But as one who’s been watching closely, I assure you that it’s been a bloody, long fight.

Don’t Make Harlan Angry. You Won’t Like Him When He’s Angry.

Harlan wasn’t as forgiving when the first salvos were fired. He was fuming when he filed suit against AOL in April, 2000 over the corporation’s then-perceived responsibility in the infringement of his copyrights. The action was taken when he discovered unauthorized copies of his work being distributed through the USENET newsgroup alt.binaries.e-book, which, at that time, could be accessed through AOL’s services. You can find the official AOL spin on this action on other websites, if you like that sort of clipped, aw-shucks, happy horse crap. Indeed, now that it’s over, AOL is practically thanking Harlan for bringing this matter to their attention. But the way I remember it, AOL was given fair warning by Ellison’s attorneys to shut down its unauthorized access to his work, and they ignored his warnings like a giant might ignore a gnat.

They picked the wrong gnat.

Harlan wrote to his fans on February 22, 2001: “For the past 10 months, my attorney and I have been hip-deep fighting a legal battle. What we think is an extremely important case: To protect writers’ creative properties. We filed a lawsuit [against AOL and others] to stop them from posting my works on the internet without permission. This is copyright infringement. Rampant. Out of control. Pandemic. AOL, Remarq/Critical Path, and a host of self-serving individuals seem to think that they can allow the dissemination of writers’ work on the internet without authorization, and without payment, under the banner of ‘fair use’ or the idiot slogan ‘information must be free.’ A writer’s work is not information: It is our creative property, our livelihood, and our families’ annuity. Why should any artist, of any kind, continue creating new work, eking out an existence in pursuit of a career, following the muse, when little internet thieves, rodents without ethic or understanding, steal and steal and steal, conveniencing themselves and ‘screw the author’? What we’re looking at is the death of the professional writer!”

“This is not only my fight,” Ellison continued. “I’m not the only one whose work is being pirated. Hundreds of writers’ stories, entire books, the work of a lifetime, everyone from Isaac Asimov to Roger Zelazny: Their work has been thrown onto the web by these smartass vandals who find it an imposition to have to pay for the goods. (But gawd forbid you try to appropriate something of theirs?listen to ’em squeal!) The outcome of this case will affect every writer, editor, photographer, artist, musician, poet, sculptor, actor, book designer, publisher and reader. What we’re looking at is the anarchy of ignorant thieves ripping off those who labor for an honest payday, because they conveniently honor the lie that everything should be theirs for the taking.”

Harlan recognized that he was on the cusp of an important, historical precedent. As such, he sought to enlist the support of other writers and artists. Sadly, too few joined the fight.

“Look,” Harlan wrote, “this is your fight, too. If that demented, self-serving misunderstanding of the word ‘information’ prevails, and every zero-ethic tot who wants everything for nothing, who exists in a time where e-commerce hustlers have convinced him/her that they’re entitled to everything for nothing prevails, and they are permitted to believe information must be free, with no differentiation made between raw data and the creative properties that provide all artists of any kind with an annuity, to allow them to continue creating new work, then what we’re looking at is the egregious inevitability of no one but amateurs getting their work exposed, while those who produce the bulk of all professional-level art find they cannot make a decent living.

“Do not, for an instant, buy into the cultural mythology that all artists are rich. A few are, but most have a hard row to hoe just subsisting, holding down second jobs. Most creators practice their art because they love it. If it were only for the bucks, they’d fare better as dentists, plumbers, or steam fitters. I’m fighting for myself, of course, but I’m also doing this for Avram Davidson, who died broke; for Roger Zelazny, who had to work like a dog till the day he pitched over; and for Gerald Kersh, whose work was reprinted and pirated in sixty-five countries, while he had to borrow money from friends to fight off the cancer. This is your fight, too, gang.”

Some folks got the message. Some didn’t. Some stepped up with cash, with support. Most watched from the sidelines.

Pain In The Ass

So Ellison did what he’s been doing most of his life?he went it alone. He stayed the course, and continued to throw money at his attorneys; continued to trumpet his cause to the media (it made front page of The Wall Street Journal) as AOL’s outside counsel, Latham & Watkins, worked without let-up to paper him and his lone attorney (at that time) to death; continued to file appeals when the legion of AOL lawyers summarily shut him down in the lower courts.

In April 2002, AOL won a summary judgment dismissing Ellison’s claims based on the limitations of copyright liability granted to Internet service providers under the Digital Millennium Copyright Act (“DMCA”). Ellison appealed that decision. Then, in February 2004, the U.S. Court of Appeals for the Ninth Circuit partially affirmed and partially reversed the summary judgment. The Court confirmed that AOL could qualify for the DMCA’s limitation on copyright liability as a “passive conduit” under the DMCA. But it reversed the lower court on the other two primary claims, and remanded the case back to the Federal District lower court for trial. This was an unexpected victory for Harlan and his team.

“I’m like a turtle,” Harlan told The Wall Street Journal on July 22, 2003. “I will never let go. I would hock my house. I would sell my children into bondage, if I had children, which I don’t. There is nothing I won’t do. Ask anybody I’ve ever been to court with. I’m a pain in the ass.” Those of us who know and love Harlan believed that if anybody could champion this battle and win, it was he. But we also whispered among ourselves that this dispute might outlive our friend.

And then came the news on June 8. America Online, Inc. and Harlan Ellison had announced a settlement to the four-year old dispute.

Harlan’s official words from the joint press release are as follows: “Through this litigation, I have come to realize that AOL respects the rights of authors and artists, and has a comprehensive system for addressing the complaints of copyright holders. I would not have settled this case if I were not sure that AOL is doing what it can do to fight online piracy. Because not all Internet service providers are as responsible as AOL, and because individual acts of online piracy continue, I am glad to have called attention to the problem of online piracy through this litigation. As promised, I will be repaying every cent of the monies contributed to the KICK Internet Piracy Fund by writers and readers.” Approximately $85,000 is being returned to the faithful.

If Harlan was D’Artagnan, the other Musketeers were his legal pals Christine Valada, Charles E. Petit, John Carmichael, Brigit Connelly, and Glenn Kulik. But the fans were there, too. Oh yes we were. One for all. All for one.

What’s It All Mean?

Jot this event down in your diary, friends. Herald it in your blog. Laminate it and frame it and hang it over your desk. This was one for the people. In an age of fuzzy business ethics and acceptable theft, Ellison’s victory is truly our own. We should all rejoice in his accomplishment.

And there’s more than enough happy endings to go around. By accepting its responsibility as the leading internet provider, AOL has set an important precedent in the protection of intellectual property. Indeed, if the company truly follows through by putting in place the software and business strategies necessary to protect IP, they, too, will have accomplished a gargantuan feat.

At the end of the day, Harlan Ellison’s victory is a victory for all creators. Further, it puts the lie to the hysterical web-heads (you know who you are) who predicted the death of the internet if he won. Nothing’s dead, little brothers. There’s a flower growing out of the crack in the pavement.

And our faith in the universe, at least for a little while, is restored.


© 2004, Clifford Meth



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