Copyright Resources

Ellison v. Robertson, et al.

This page is intended only to provide a basic understanding of the case and selected documents and rulings. (Due to a protective order, not all documents can be made available.)

In early spring of 2000, famous author Harlan Ellison became aware that his works were being (sloppily) pirated in certain Usenet newsgroups. Two years of litigation later, two of the defendants have settled: the front-line pirate, and the news service that provided the front-line pirate with the opportunity to distribute his piracy. The remaining defendant, America Online, Inc., continues to assert that the Digital Millennium Copyright Act (see Legal Authority on Copyright) prevents Mr. Ellison from obtaining any effective relief for any liability it might otherwise have.

On 10 February 2004, the US Court of Appeals for the Ninth Circuit reversed in part and remanded the case. It will now go back for trial on contributory infringement and the reasonability of AOL's DMCA policies, unless someone tries to continue the appeal process (which is not, at this writing, known).

On 08 June 2004, Mr. Ellison and AOL announced a settlement of this dispute. The joint press release is as follows:

America Online, Inc. and multiple award winning author Harlan Ellison today announced a settlement of their four-year old copyright dispute.

Ellison sued AOL in April 2000 over concerns that unauthorized copies of his and the works of other authors were being distributed through the USENET newsgroup alt.binaries.e-book, which, at that time, could be accessed through AOL's and others' services. AOL blocked its users' access to the alt.binaries.e-book newsgroup immediately after Ellison filed his lawsuit.

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. 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.

Both AOL and Ellison are pleased this case was able to draw the courts' and the public's attention to the issue of online piracy and advance the legal issues relating to copyrights in the digital world.

Ellison said: "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.

Curtis Lu, AOL's Deputy General Counsel, said: "AOL is glad to have played a role in confirming the DMCA's limitations on liability, which are available to services providers who provide access to content on the Internet and USENET. Consistent with the framework of the DMCA, AOL will continue to act responsibly in balancing the interests of copyright holders and the interests of its members."

Last Updated: 08 June 2004

Calendar

• Settlement announced 08 Jun 2004 (see above)
• Judgment of 09 Apr 2002 (Cooper, J.) vacated, making the 12 Mar 2002 opinion moot and no longer good law except as to potential liability for contributory infringement
• Appeal Status Decision issued, 10 Feb 2004, reversed in part and remanded (PDF, 85kb); cite as Ellison v. Robertson, et al., 357 F.3d 1072 (9th Cir. 2004)
• Appellant's (Ellison's) Principal Brief submitted: 23 Aug 2002 (HTML)
• Amicus briefs for reversal submitted: 30 Aug 2002 (one brief was submitted by the Business Software Alliance (HTML); one brief was submitted by the non-Warner members of the RIAA (BMG, EMI, Sony, and UMG) (HTML))
• Appellee's (AOL's) brief submitted: 07 Oct 2002
• Amicus briefs for affirmance submitted: 15 Oct 2002 (one brief was submitted by AT&T; one brief was submitted jointly by the Internet Commerce Coalition and the U.S. Internet Service Provider Association
• Appellant's (Ellison's) Reply Brief submitted: 04 Nov 2002 (HTML)
• Oral argument: 06 March 2003, Pasadena, California
• Other Rulings
• Order denying AOL's application for attorneys' fees (HTML) (15 May 2002)
• Opinion granting AOL's motion for summary judgment pursuant to the DMCA (12 Mar 2002) (RTF, 86k)
  This opinion should be cited as Ellison v. Robertson, et al., 189 F. Supp. 2d 1051 (C.D. Cal. 2002), rev'd in part and remanded, 357 F.3d 1072 (9th Cir. 2004)
• Note Regarding Briefs: Briefs have been minimally edited for online use. Certain technical material, such as certificates of service, has been redacted. The briefs appearing here do so with the explicit permission of the parties upon whose behalf the briefs were filed.

Site Index

• The Scrivener's Error blawg
• Copyright resources
• Books on copyright
• Public domain dates
• Piracy and infringement
• Amazon.com's Internal Search Feature
• Legal authority
• Ellison v. Robertson et al.
• Literary scams
• Agents
• Editors
• Publishers
• Printing
• Resources for Writers
• Books on Writing
• Magazines for Writers

Forthcoming items are not linked

—Charlie Petit
cepetit@scrivenerserror.com