Ellison

Harlan Ellison appeals the district court’s summary judgment dismissal of his copyright infringement action against America Online, Inc. (AOL). The copyright infringement action arose when, without Ellison’s authorization, Stephen Robertson posted copies of some of Ellison’s copyrighted short stories on a peer-to-peer file sharing network, the USENET. Because AOL provides its subscribers access to the USENET news-group at issue, Ellison brought claims for vicarious and contributory copyright infringement against AOL. AOL moved for summary judgment. It asserted defenses to Ellison’s infringement claims and alternatively argued that it qualified for one of the four safe harbor limitations of liability under Title II of the Digital Millennium Copyright Act (DMCA). The district court concluded that AOL was not liable for vicarious infringement. Although the court found there to be triable issues of material fact concerning Ellison’s contributory infringement claim, it nonetheless granted summary judgment because it held that AOL qualified for the DMCA safe harbor limitation of liability under 17 U.S.C. § 512 (a).

We hold that the district court erred in granting AOL’s motion for…