The AOL List: Infringements

David Cassel (
Wed, 16 Jul 1997 14:46:07 -0700 (PDT)

		         I n f r i n g e m e n t s 


300 copyright infringements.

That's what "Pictures of the World" found when they visited AOL.  Touring
the service, the former content provider discovered "images lifted right
from our forum and used without our permission" -- over 300 of them. 

AOL apparently ignored their complaints.  Even a month after they were
notified, AOL continued displaying most of the images, according to the
company's founder -- during which time AOL did not respond to their
attorney's letter.  ( ) 

It's not the first time AOL's borrowed material from other sources.  "We
didn't pay for that content," Ted Leonsis bragged in an interview with
DigMedia ( ) --
explaining AOL's strategy of integrating links for web sites into AOL's
own offerings.  "We get somebody else's content for free.  I didn't have
to write a check..."  Wired magazine called this strategy "co-opting the
internet" ( ) -- and
AOL's "Omni" area shows how seamless the transition can be.  
( )  
Though the magazine left AOL in the fall, keyword Omni still leads to an
AOL content area -- displaying pages downloaded surreptitiously from the
magazine's web site.  AOL's interface hides the transmission, so the web
site appears to be part of AOL -- but it appears next to an icon for AOL's
Science Fiction forum.

Omni is aware of the arrangement -- which must provoke envy from other
content partners who left the service after refusing to pay to maintain a
presence on AOL. "Supporting our users on AOL was important to us," says
Jason Whong, Marketing Manager for Ambrosia software, "but we could never
justify the new $55,000 expense."  In fact, he's saddened by AOL's lack of
loyalty.  "It's unfortunate that America Online needed money so badly that
they chased out many of the companies that helped them grow." 

Without a satisfactory agreement for the use of their content, the company
moved operations to the internet -- and now AOL's mail delays are hurting
their customers.  "Some of our biggest fans on AOL missed out on a chance
to beta test our latest game, Harry the Handsome Executive
( ), because they received our call for
testers two days after we had stopped taking applications."  In fact,
tests performed by the AOL List Thursday showed 15 hours passed before a
test message appeared in our AOL mailbox -- and Friday, after a five-hour
wait, a second message still hadn't arrived.  Though AOL has yet to warn
their members, mail problems have been ongoing since June 13.  
"Things have really degenerated there lately," the former content partner

But "Pictures of the World" had been led to believe their future was rosy,
while, "scores of forums, had already been closed down in the face of flat
pricing." ( )  Anticipating a
fourth year of providing AOL content, their forum was abruptly closed at
the end of June.  "We had never met, or even spoken to, the two women who
called us," reads a letter their attorney sent the company, outlining
legal actions.  He added that "We would also consider joining forces with
other Partners who feel they have been mistreated by AOL."
( )

In fact, all users are affected by AOL's interpretation of copyrights. 
Their Terms of Service state that AOL also owns rights to any on-line
content created by their subscribers. Simply posting to a message board or
forum grants AOL "the royalty-free, perpetual, irrevocable, non-exclusive
right (including any moral rights) and license to use, reproduce, modify,
adapt, publish, translate, create derivative works from, distribute,
communicate to the public, perform and display the Content (in whole or in
part) worldwide and/or to incorporate it in other works in any form, media
or technology now known or later developed, for the full term of any
rights that may exist in such Content."

It's unpublicized policies that benefit AOL.  Users may not know it, but
new additions to the Terms of Service go into effect in two weeks -- and
if you're an AOL user, "Your continued use of AOL following the Effective
Date...constitutes acceptance of all such changes."  The Terms of Service
will allow AOL to make mandatory updates to the AOL software -- and, "You
hereby consent to these automatic upgrades."

Other new caveats:  

   AOL "further reserves the right, in its sole discretion, to temporarily
   suspend the delivery of mail through the Preferred Mail tool." 

   "Members' accounts may be automatically logged off due to inactivity," 
   and AOL "prohibits the use of unauthorized functionality to defeat AOL's
   automatic log-off functionality."  

   Possibly considering AOL's access problems, the new Terms of Service
   say members may access keyword Billing "when feasible." 

   Addressing recent billing controversies, AOL simply states that
   from now on "You agree that any telephone charges incurred are your
   responsibility, including any charges associated with accessing a
   surcharged 800 or 888 number."

In fact, much of the original Terms of Service reflects past controversies
over billing.  Another passage states that "Each time you use AOL you
agree and reaffirm that AOL, Inc. is authorized to charge your designated
card or withdraw funds via electronic funds transfer from your checking
account, whichever situation applies."  

The old TOS also warned customers that AOL would use their information for
billing and to "offer you opportunities (e.g., pop-ups or e-mail) that may
be of interest."  But the new TOS spells it out -- users will get
unsolicited ads "through pop-ups, e-mail, phone calls or direct mail" and
"we may also match Member lists against publicly available third-party
data."  Later disclosure about advertising says AOL may even provide the
phone numbers to other companies "with which AOL, Inc. has contractual
marketing and online relationships for the purpose of permitting such
companies to offer products and services over the telephone."

Rather than use the word "telemarketing," the Terms of Service says AOL's
users will be offered "opportunities".  (Indeed, the word telemarketing
appears only once in the entire document!)  AOL says they'll also track
users' motions on the service -- to offer them "special opportunities"
based on their behavior.  And that's not the only source of unsolicited
marketing. AOL's Terms of Service has always conceded that "when you
voluntarily disclose personal information (such as your screen name) in
public areas (e.g., the Member Directory, chat rooms, message boards,
Internet newsgroups), others may collect and use your information."

The elasticity of AOL's conduct prohibitions -- preventing users from even
"disrupting the normal flow of dialogue" -- shrouds subscribers in
ambiguity. ( )  In one document the
Electronic Freedom Foundation pointed out that AOL has yet to "state
clearly the boundaries within which members are required to operate, or to
present them with a specific contract."  Recently a user even received a
Terms of Service warning for posting the famous light bulb joke. 
( )

But he's not the only one making fun of AOL's schizophrenic business
policies.  So is Inc. Magazine.  "When they promised me a service they
knew they couldn't deliver 24/7, well, it was unforgivably rude, rude,
rude....  It messes with our heads, this thinly disguised contempt for
one's 'valued' customers."  The writer -- who co-authored Tom Peters'
best-seller, "A Passion for Excellence" -- observes that "I have a drawer
full of sign-up-with-us-for-free disks, most of which arrived during
America O.L.'s so-called recruiting hiatus..."
( ) 

Media Central noted the irony of a red light on their way to interview
AOL's Vice President of Marketing: "Even in terrestrial space, we can't
get through to AOL."  After they reached her, they were able to finally
uncover the number of floppy disks AOL has distributed:  279,168,000. 
( )  
That's more than the entire population of the United States.  "Any way you
slice it, 200 million disks is carpet-bombing," an analyst tells the
reporters -- noting that historically AOL's annual churn rate reaches

They've become the target of parody, as "Denounce" claims AOL has
streamlined the cancelling process with a new service at 1-800-Quit-AOL
"between the hours of 4:00 to 6:00 am (EST) on days that begin with the
letter F."  Spurious quotes explaining the policy are attributed to Steve
Case.  " 'If you're still on the line after sixty minutes, well, all of
our operators are busy or resting, and you'll just have to wait.' Case
figures AOL customers are used to waiting so he doesn't anticipate any
problems."  ( ) 

But the very real problems with copyright issues may heat up.  Recently
the Vice President of Advertiser Programs for C|Net spoke out against
AOL's policy of storing copies of web pages on AOL's computers in Virginia
to cover-up the service's slow connection to the internet, noting that "if
our site is mirrored on AOL, we obtain no revenue from that." 
&directory=/chronicle/archive/1997/07/15 ) In the past this practice has
even resulted in AOL users seeing old copies of web pages which have since
been updated ( ) -- but it gives
the appearance of AOL's browser being faster than it is.  A recent article
in Min's New Media Report suggests AOL is releasing statistics about the
traffic to the cached web page copies -- but only to web sites who have
partnerships with AOL! 

AOL may have found a way to benefit from the very problem they've created. 
But as even the Washington Post complains about AOL's pitches for cash,
the service may find they've gone too far.  After enduring bad performance
from their software, one subscriber drew the ultimate comparison for the
AOL List.  They noted that "the Devil is famous for good marketing -- but
poor delivery."


AOL's marketing claims that "We're ready for you" are contradicted by
AOL's Terms of Service.  In one clause, they flatly concede that AOL "does
not guarantee that members will be able to access the service at a time or
location of their choosing, or that it will have adequate capacity for the
service as a whole or for particular products."

        David Cassel
        More Information -


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