FC: Author Harlan Ellison waxes wroth over Net-piracy, asks for cash

[Declan McCullagh <declan () well com>]

***********

From: Anthony Dye <ADye () evokesoft com>
To: declan () well com
Subject: Harlan Ellison freaks out
Date: Thu, 8 Mar 2001 06:43:36 -0800 

As posted on /., Harlan Ellison punishes the online community with a rant on
IP rights.

The punishing part is, of course, IT'S IN ALL CAPS.

http://www.speculations.com/kick.htm

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See also:
http://www.speculations.com/index.shtml

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http://www.speculations.com/kick.htm

   Site Map : Speculations
   
   Publisher's Note: the following message was received on February 28th,
   2001. After speaking with both M. Christine Valada and Susan Ellison,
   I am posting it here in its entirety, in as close to its original
   format as I could possibly manage and still have it work on the Web.
   
     * If you have any information about this case, please contact M.
       Christine Valada at PhotoLaw () ix netcom com or (818) 783-0281.
     * If you'd like to discuss Internet piracy, please visit The Rumor
       Mill.
     * Finally, please do everybody in the industry a favor and send this
       article to a friend.
       
   3/5/2001: Tim Pratt (editor of Speculon) and Marissa Lingen reply to
   Harlan's letter.
   
                 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 WRITERS
   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 WERE LOOKING AT IS THE DEATH OF
   THE PROFESSIONAL WRITER!
   
   THIS IS NOT ONLY MY
   FIGHT, IM 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
   THEIRSLISTEN 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 WERE 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 THEYRE 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 WERE 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, THEYD FARE BETTER
   AS DENTISTS, PLUMBERS, OR STEAM FITTERS. IM FIGHTING FOR MYSELF, OF
   COURSE, BUT IM 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, ITS BEEN A BEAR.
   WERE ABOUT FORTY GRAND OUT OF POCKET, AND IVE HAD TO SELL OFF A FEW
   PERSONAL POSSESSIONS AND MAGAZINE FILES TO MEET ATTORNEY COSTS. BUT
   WERE 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 WEVE 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, ITS 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 authorsthe exclusive right to theirwritings 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 Harlans 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 Robertsons
   ISP was Tehama County Online, TCO outsourced its newsgroup services to
   RemarQ Communties, Inc. TCO cooperated by blocking Shakers 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.
   
   AOLs 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 Courts more recent ruling on AOLs motion
   to dismiss, or in the alternative for a more definite statement, the
   second amended complaint, which was heard in January and resolved in
   Harlans favor. AOLs answer to the second amended complaint was due on
   February 5, 2001.
   
   RemarQ/Critical paths 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 Paths 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 AOLs witnesses are likely to be in the DC area and
   RemarQ/Critical Paths 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, AOLs 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 Harlans 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 doesnt require the use of a credit card to
   secure an address and Citizen 513 doesnt 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 arent 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 Harlans 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
   Harlans 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 doesnt adhere to the Berne Copyright Convention. We
   think this person was actually in the U.S., but hes 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 Harlans 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.
   
   Thank you.

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