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AOL not liable for unauthorized e-books

A judge rules that America Online is not liable for the posting of e-books on its Web servers, clarifying ISPs' responsibility for material on their networks.

In a ruling that clarifies whether Internet service providers are responsible for material on their networks, a federal judge has ruled that America Online is not liable for the unauthorized posting of some e-books on its Web servers.

Harlan Ellison, author of several books and hundreds of short stories, sued AOL in 2000, alleging the company violated his copyrights by allowing unauthorized copies of his work to remain on Usenet servers for two weeks. Ellison originally named the newsgroup host and Stephen Robertson, the fan who scanned the work and uploaded it onto the Usenet servers, in the lawsuit, but both parties settled, leaving AOL as the only defendant.

Last week, U.S. District Judge Florence-Marie Cooper ruled that AOL is protected by provisions in the Digital Millennium Copyright Act (DMCA) that shield ISPs from liability if they remove disputed content when notified. The DMCA is a controversial act originally designed to bring copyright law into the digital age.

In her ruling, Cooper noted the newsgroup in this case "seems to have been used primarily to exchange pirated and unauthorized digital copies of text material, primary works of fiction by famous authors, including Ellison."

However, she granted AOL's request to toss Ellison's allegations, saying the company, which provides Usenet servers, "did not induce or encourage Robertson to directly infringe Ellison's work."

Cooper's ruling sheds more light on how courts are interpreting the ISP exemption in the DMCA--a trend that has many Net access providers breathing a sigh of relief.

"We're very pleased with the court ruling in this case," AOL spokesman Nicolas Graham said. "This was simply a restatement of accepted policy and legal principles."


Gartner analyst Arabella Hallawell says that between protecting themselves from liability and restricting free expression of subscribers, Internet service providers tread a fine line in the United States.

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Ellison and his attorneys have not yet decided whether to appeal Cooper's ruling.

"We respectfully disagree with her analysis," said Charles Petit, an Urbana, Ill.-based attorney who's representing Ellison.

Ellison's attorneys also disputed AOL's characterization of the ruling as a major win for ISPs using the DMCA defense. "The DMCA is not a get-out-of-jail-free card," Petit said.

As lawmakers were hammering out content-protection laws a few years ago, ISPs feared they would be unduly taxed with cracking down on copyright theft. When the DMCA was being drafted, ISPs such as AOL, now a division of AOL Time Warner, successfully lobbied for exemptions that would prevent them from having to spend all their time policing their networks.

In recent years, copyright owners have tested those exemptions by filing lawsuits accusing ISPs of contributing to copyright infringement. Although many ISPs succeeded in having such suits rejected, peer-to-peer companies seeking shelter under the exemptions haven't been so lucky.

Most recently, the entertainment industry has cracked down on companies including Napster and StreamCast Networks, alleging they allowed rampant copyright infringement by providing a vehicle for consumers to swap files. So far, courts have rejected the DMCA defense for peer-to-peer networks, although some provisions of Cooper's ruling could help their argument.