Monday, September 24, 2007

A Few Words about Harlan Ellison

Our friend Harlan Ellison was feted at the Cleveland Public Library on Friday night. I'm not from Cleveland, but I spent 2 1/2 years living in the Heights while I went to law school there. I couldn't be at this event, but I did let some friends of mine know about it and I hope they had a chance to see Dreams with Sharp Teeth and hear Harlan speak afterwards. It is an experience not to be missed. I was asked to write a tribute, which I did. I thought I'd post it here.


“Ms. Valada?” questioned the voice on the other end of the phone. “This is Harlan Ellison.” The call came through just a few days after I had moved to Cleveland to start classes at Case Western Reserve University’s School of Law. I had left my career as a professional photographer in Washington, D.C. to become a copyright lawyer. Six weeks before the call, I flew to Los Angeles to photograph a number of science fiction writers for an exhibit and Harlan Ellison had been my primary goal.

My formal introduction to Harlan got off to a rocky start (and that’s a whole story I won’t tell here) but illustrator Leo Dillon stopped Harlan from walking away from the sitting. Despite that prickly meeting, I knew I had captured something special about Harlan on film and that he would have to love the print I mailed him. He did. His tone on the phone was far friendlier than it had been in July. He wanted to use the photograph on a book jacket. Obviously, I was a “real photographer” and not just somebody with an expensive camera. I realized he must have called within minutes of opening the envelope.

Harlan recognizes, encourages, and respects talent. Many writers got a break because of Harlan Ellison. So have artists. Harlan is, and long has been, a tireless advocate for creators’ rights, but he doesn’t just talk the talk. He understands the business of writing. I don’t know anyone who can find more ways to make money off the same words than Harlan can. Most importantly, he’s ready, able, and willing to take on anyone who infringes on his rights as a writer. From the standpoint of preparation, he’s the perfect client for a copyright lawyer and a shining example to anyone who ever had delusions of making a living from their creative output.

In April of 2000, I got another call from Harlan. By then, I was living in Los Angeles, had practiced copyright and entertainment law for about seven years, was the outside general counsel for the Science Fiction and Fantasy Writers of America, and was married to one of Harlan’s best friends (despite what was said back on that day we were first introduced), so a call from Harlan was a relatively common occurrence. This time, however, Harlan was hopping mad because his work was showing up in news groups on-line and he wanted to go to war.

Unlike almost all of the other authors whose short stories were being “shared” on-line—and there were many--Harlan’s copyrights were all registered and properly renewed with the U.S. Copyright Office. Under any other circumstances, we could have filed an action that very day going after all direct and contributory infringers, demanding statutory damages and attorneys fees, and we most likely could have prevailed at the level of a preliminary hearing. Not so when the infringers were using the Internet, where the law had recently been changed to shield the deep pockets (in this case America On Line and a company called Critical Path), and where there was not one reported ruling construing the new law.

Harlan wasn’t too happy to find out that what is known as the Digital Millennium Copyright Act (DMCA) required us to send notification to both AOL and Critical Path and that they had the right to be dropped from any lawsuit if they responded “expeditiously” and took down his stories. He would be limited to going after the individuals who had scanned and uploaded his stories, and those who continued to post and re-post them. Identifying the perpetrators in this or any similar case would prove to be almost impossible or financially ruinous, leaving a copyright holder with little in the way of restitution for infringement on the Internet.

Amazingly, neither AOL nor Critical Path responded to the notice-and-take-down demands we sent. They did notice the filing of the lawsuit, though, and thus began four years of facially conflicting defenses, motions, discovery, motions, rulings, settlement (with the one direct infringer we could identify and with Critical Path), and appeal before the Ninth Circuit recognized that the DMCA placed obligations on service providers before they would be able to claim that precious limitation on liability and AOL finally sat down to negotiate a settlement.

Through it all, Harlan never wavered in his belief that he would prevail. While many of Harlan’s colleagues and fans gave financial support (all repaid) for him to carry on this fight, a huge vocal contingent of the “information wants to be free crowd” jeered his efforts and dismissed his likelihood of success. Now, there’s a reported Ninth Circuit ruling with his name on it, which, unlike a large percentage of published rulings, has already been cited by other courts working their way through the legal mire of copyright in the digital age.

There are many people who want to be like Harlan Ellison the writer, with good reason. More of them should try to be like Harlan Ellison the businessman.

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