Harlan ellison fights for creators’ rights



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HARLAN ELLISON FIGHTS FOR CREATORS’ RIGHTS




Re: Harlan Ellison v. Stephen Robertson, America Online, Inc., RemarQ Communities, Inc., Critical Path, Inc., Citizen 513, and Does 1-10, Federal District Court, Central District of California Civil Case No. 00-04321 FMC (RCx)

22 February 2001


FOR THE PAST TEN MONTHS MY ATTORNEY, M. CHRISTINE VALADA, 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 THE ABOVE PARTIES 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, 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.
LOOK, 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… AND NOW WE NEED YOUR HELP!
FOR THE PAST TEN MONTHS, MY ATTORNEY AND I HAVE FOUGHT THIS ALONE. ALTHOUGH WE ARE LOATH TO ASK, WE DO NOT HAVE THE ENDLESS DEEP POCKETS AND LAWYERS (14 AT THE LAST COUNT) THAT BENEFIT LARGE, ARROGANT CORPORATIONS. WE NOW NEED YOUR FINANCIAL HELP. AS TO THE MONEY BEING SPENT FOR THE DAVID-vs.-AOL GOLIATH LAWSUIT: YEAH, IT’S BEEN A BEAR. WE’RE ABOUT FORTY GRAND OUT OF POCKET, AND I’VE HAD TO SELL OFF A FEW PERSONAL POSSESSIONS AND MAGAZINE FILES TO MEET ATTORNEY COSTS. BUT WE’RE ABOUT TO ENTER THE “DISCOVERY PHASE” OF THE LITIGATION, AND AOL, REMARQ/CRITICAL PATH, ET AL ARE CLEARLY TRYING TO “PAPER US OUT,” AND WHAT WE’VE SPENT UP TO NOW WILL SEEM LIKE A FART IN A SIROCCO. SO, YES, OH YES LAWD, CONTRIBUTIONS ARE GRATEFULLY ACCEPTED IN THIS FIGHT TO STAMP OUT INTERNET PIRACY.
TO MAKE ABSOLUTELY DEAD CERTAIN THAT NO ONE CAN EVEN REMOTELY SUGGEST THAT CONTRIBUTIONS WENT ANYWHERE BUT TO FIGHT THIS INFRINGEMENT OF WRITERS’ RIGHTS, WE ARE SETTING UP A NEW POST OFFICE BOX ADDRESS, SPECIALLY AND ONLY FOR RECEIPT OF CONTRIBUTIONS TO WHAT WE ARE NOW CALLING KICK INTERNET PIRACY. AND ALL CHECKS MUST BE MADE PAYABLE DIRECTLY TO OUR ATTORNEY, M. CHRISTINE VALADA, TO HELP COVER COSTS AND LEGAL FEES. (AND WHEN WE ARE ASKED, “WELL, WHAT IS KICK AN ACRONYM FOR?” WE RESPOND, “IT’S FOR KICK ’EM IN THE ASS!”)
IF YOU WANT TO HELP PROTECT YOUR RIGHTS, AND THE CAREERS OF WRITERS WHOSE WORK YOU ENJOY, PLEASE SEND YOUR CONTRIBUTION—A FEW BUCKS, OR A LOT OF BUCKS—TO:
KICK INTERNET PIRACY

POST OFFICE BOX 55935

SHERMAN OAKS, CA 91413
PLEASE MAKE YOUR CHECK PAYABLE TO:

LAW OFFICE OF M. CHRISTINE VALADA
Attached is detailed information on the

case prepared by the fighting barrister, M. Christine Valada.
WHATEVER HELP YOU SEND, WE THANK YOU.

Harlan Ellison

From: M. Christine Valada, Esq., Attorney for Harlan Ellison.
Re: Harlan Ellison v. Stephen Robertson, America Online, Inc., RemarQ Communities, Inc., Critical Path, Inc., Citizen 513, and Does 1-10, Federal District Court, Central District of California Civil Case No. 00-04321 FMC (RCx)

THE NATURE OF THE CASE:

Ellison v. Robertson, et al., is a case of copyright infringement on the Internet. Unlike the Napster matter, which has garnered substantial press attention because the music industry as a whole took on the issue of wholesale infringement of recordings on the Internet, the piracy of text has been largely overlooked by the publishing industry and the popular press. The case is complicated by the Digital Millennium Copyright Act (DMCA), passed in 1998, which established certain limitations of liability for online service providers when third parties post infringing material to or through an online service. Because the law is so new, reported decisions citing to the various provisions of 17 U.S.C. 512 et seq. are minimal and this case, like the Napster case, the MP3 cases, and the DeCSS case are charting new ground for the legal system.


This case is important to all writers and to the publishing industry because it is on the cutting edge of legal issues which could drastically change the constitutional mandate to “secure for limited times to authors…the exclusive right to their…writings” and the ability of publishers to profitably copy or distribute those writings.
Fortunately for Harlan Ellison, since this memo was first drafted on February 2, two important decisions have been handed down by the Fourth and Ninth Federal Circuit Courts of Appeal which vindicate virtually every argument we have made for the protection of copyrighted material online. The media have covered the Ninth Circuit Napster Decision extensively. The Fourth Circuit decision, ALS Scan v. RemarQ Communities, Inc., is a resounding defeat for one of the Ellison defendants on similar facts and arguments of law raised in the Ellison matter.
FACTUAL AND PROCEDURAL BACKGROUND:
In April, 2000, Harlan Ellison was told that an individual using the screen name and e-mail address shaker@tco.net was scanning stories by him and other writers and posting them to a newsgroup called alt.binaries.e-book. (The designation alt.binaries means that it is a newsgroup where files of material are exchanged; there is relatively little discussion among the participants.) John Miller (former SFWA® secretary) and Susan Parris assisted in tracking the works which were copied to the newsgroup, which they received as part of the subscription to America Online. Four of Harlan’s stories, all apparently scanned from copies of the Nebula Awards® anthologies, were identified as copied by “Shaker.”
We learned that “Shaker” was actually Stephen Robertson, a 40-year-old living with his parents in Red Bluff, California. Although Robertson’s ISP was Tehama County Online, TCO outsourced its newsgroup services to RemarQ Communties, Inc. TCO cooperated by blocking “Shaker’s” account immediately upon notice of the infringing activities and revealing the services provided by RemarQ and was therefore not included in the lawsuit which followed.
The original complaint was filed on April 24, 2000. Stephen Robertson settled with Harlan almost immediately and is no longer a part of the case except for evidence he may have to provide during discovery and trial. The complaint was amended in late May and the Court permitted the filing and service of a second amended complaint in October.
We faced a series of procedural challenges to the complaint prior to answer by either AOL or RemarQ and its new parent company Critical Path, but we have prevailed and are now out of the pleading stage and facing the discovery phase.
AOL’s original motion for dismissal or summary judgment on the first amended complaint was heard in July, and resulted in a temporary partial victory for AOL. However, the effect of this early ruling in favor of summary judgment on the copyright allegations has been essentially overruled by the Court’s more recent ruling on AOL’s motion to dismiss, or in the alternative for a more definite statement, the second amended complaint, which was heard in January and resolved in Harlan’s favor. AOL’s answer to the second amended complaint was due on February 5, 2001.
RemarQ/Critical path’s original motion to dismiss or in the alternative for summary judgment on the first amended complaint was scheduled for hearing and moved several times before being declared moot by the Court when granting leave to plaintiff to file the second amended complaint at the end of October. [Note: RemarQ provides its Usenet newsgroup services under the name SuperNews; SuperNews remains one of the prime origination news servers for illegal material posted to alt.binaries.e-book.] RemarQ/Critical Path’s motion to dismiss or in the alternative for summary judgment on the second amended complaint was denied by the Court in January. RemarQ/Critical Path answered the second amended complaint on January 26, 2001.
In its order of January 12, 2001, the Court demonstrates a better, but not complete, understanding of the DMCA than evidenced in July. What is important about this ruling is that it sets out that the analysis for a limitation of liability under the DMCA is fact-based and that online service providers must show that they have qualified for the limitation of liability by meeting threshold responsibilities. The ruling is now bolstered by the Ninth and Fourth Circuit decisions and a review of the January 5, 2001 tentative in the Ellison case indicates that it was even more in line with the subsequent Napster and ALS Scan rulings.
WHAT LIES AHEAD:
We are about to begin the discovery phase of this litigation. At issue are matters such as whether AOL or RemarQ/Critical Path fulfilled their duties under the DMCA for the limitations of liability, whether the defendants had prior knowledge of the infringing activities or ignored “red flags,” whether the defendants are direct, contributory or vicarious infringers of the copyrights and whether their activities—or the activities they have failed to stop—also constitute unfair competition with Harlan. Interpretation of the DMCA is still an overriding issue here, and it is our position that AOL is arguing an impermissible extension of the law, which, if ultimately accepted by the Court, will make it impossible for anyone ever to prevail against an online service provider in copyright infringement litigation. We are also deeply disturbed by the RemarQ/Critical Path position that the wholesale copying of copyrighted works of fiction is “fair use.” Or that it was necessary to copy all of the material to fulfill the public good of keeping the Internet operating. This is truly a death of copyright argument.
Fortunately for us, the Ninth Circuit Napster ruling makes it quite clear that the Ninth Circuit will not accept the position that the wholesale copying of copyrighted material is “fair use” or that somehow the First Amendment is violated by the Copyright Act. The Ninth Circuit relied on the same cases we did in our motion briefs to make its points on these two issues.
With the second amended complaint, we were able to add a complaint for vicarious infringement against AOL for the development of the Gnutella file transfer protocol by its Nullsoft division. Gnutella is Napster without a central processing hub. By setting up a “sting” operation, one of our investigators was able to track the infringement of several works by Harlan and Isaac Asimov using Gnutella. This presents interesting issues regarding the responsibility for the release of software which effectively pollutes the intellectual property environment.
We will face substantial expenses for depositions and electronic discovery. Because AOL’s witnesses are likely to be in the DC area and RemarQ/Critical Path’s are in the Bay area, travel will be required. Also, we will need to pay our expert witness(es) for their work and required reports. These out of pocket expenses are, of course, in addition to legal fees and it may be necessary to hire associate counsel, law clerks, or litigation paralegals to help with both responding to and promulgating discovery. Since opposing counsel have not taken a clue from these two recent decisions to open settlement negotiations, we fully expect to face tactics which will increase the cost of litigation for Harlan. In fact, AOL’s attorneys notified us at a meeting of counsel on February 20th that they intend to file yet another motion for summary judgment on the issue of their limitation of liability under Section 512(a) of the Copyright Act, despite legislative history which shows that this section is inapplicable to newsgroups.
SFWA has allocated $5000.00 to help combat Internet infringement. Approximately 25% of this was paid to the attorney for the Heinlein estate who traveled to Russia in May and attempted to shut down some of the pirate archives established there which infringe on the works of many authors, including Harlan. Another 20% has been used to cover expenses in this case for DMCA subpoenas, online research charges, special research materials, service fees, messengers or incidental expenses. I intend to request the release of the remaining $2500.00 to defray upcoming expenses, including our continued attempts to identify the “Doe” infringers, but I know this money will not go far.
We are still attempting to identify and locate the individuals who have hidden behind false screen names and anonymous remailers to infringe on Harlan’s work and on hundreds of other works of fiction. The individual we most want to identify, locate and serve with this lawsuit is Citizen 513, but there are others.
Citizen 513 was a RemarQ/SuperNews subscriber. We know that he has maintained an e-mail address in Canada called booklist@apexmail.com. Unfortunately, Apexmail doesn’t require the use of a credit card to secure an address and Citizen 513 doesn’t answer mail sent to him at this address. This address is for the receipt of electronic files of pirated works, so Citizen 513 can maintain his list of pirate works and other pirates request files from him. Citizen 513 had a web site with his list of works on Geocities for a while. He also had a server in Russia which stored the actual files (ftp://haali.po.cs.msu.su/enscifi/a.b.e-book), but we were able to shut that down. Sometimes, he gives the appearance of being in Australia and working for an electronic data company (hence his ability to get to unsecured servers) but we aren’t sure of anything or even if he is male. Citizen 513 also appeared as anonymous@cotse.com and may also have used the name Worlock@supernews.com or “Swisslife” and others.
Other individuals who have posted Harlan’s work include:

“Mindseye” aka mindseye@soma.com (a false e-mail address)



meo@io.com

“Buckethead” aka buckethead21620@yahoo.com

“Earl Cravens” or ecravens@hdo.net

the originator of http://www.macroscope.newmail.ru/books_in _english.htm

“Brains” aka removeallthisexcept_quantic@bigfoot.com or quantic@bigfoot.com

ALL OF THESE INDIVIDUALS HAVE BEEN IDENTIFIED

AS DOE DEFENDANTS IN THE LAWSUIT.
We are constantly on the lookout for other individuals who post Harlan’s works and the works of other science fiction and fantasy writers in alt.binaries.e-book and its mirror sites. It is difficult to police these places on a daily basis, so we rely on good Samaritans to help us keep on top of the pirates. For example, someone using the name “Robert Armbruster” recently set up a web site in a former Soviet republic which doesn’t adhere to the Berne Copyright Convention. We think this person was actually in the U.S., but he’s been hard to track down because he uses a European e-mail service to go into alt.binaries.e-book. Following our meeting of counsel on February 20th, I did another search of alt.binaries.e-book. My reader showed that there were 3998 NEW posts since I checked last week, including some of Harlan’s work. This time the culprit was Baxtrom@home.com who is in the middle of uploading some 950 files to the newsgroup. These entries were made on February 18th. I have already sent notices to home.com, look.ca and idirect.com (the news service he appears to be using). THERE ARE OTHERS LIKE HIM AND WE WANT THEM ALL!
Any assistance you can offer will be greatly appreciated.
For any information on these individuals, please contact:

M. Christine Valada at:



PhotoLaw@ix.netcom.com (or)

Office telephone number: (818) 783-0281


For contributions to the case:

Kick Internet Piracy, Post Office Box 55935, Sherman Oaks, California 91413.

Checks to be made payable to: Law Office of M. Christine Valada.

For Internet Donations, visit the Kick Donations Page at http://harlanellison.com/kick/donate.htm


Thank you.


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