Kelly v Arriba Soft Case Background And Documents
Kelly v Arriba Soft was first filed on April 6, 1999. The basic charge was direct copyright infringement for use of images owned by Kelly as part of a multi-million image database created by Arriba Soft, Inc., to support the sale of its proprietary software, Arriba Express, which would be used by buyers to manipulate images found within the database of images at Arriba Vista Image Searcher. Under the guise of the Arriba Vista Image Searcher, a start up image search engine, Arriba Soft offered its users the opportunity to search for images; it would even go out and find desired images if they were not already in its database. The image search results were served up in thumbnail format with a small box beside each thumbnail image which, when checked, would "Download To Arriba Express" the full sized image for the Arriba Express user to manipulate, without permission, for their own purpose, commercial or otherwise. Potential users could also click the thumbnail image which would display the full sized image, framed with advertising and Arriba Soft's Arriba Vista Image Searcher, giving the viewer the impression that the full sized image was housed on the Arriba Soft website.

The Arriba Express and Arriba Vista Image Searcher were described in the Arriba Vista Press Release as "image searching is now seamlessly married to media management." It continues, "The digital images from Arriba Vista can automatically be downloaded into the Arriba Express media management product by clicking a button located on the Arriba Vista search results page. The combination of Arriba Vista and Arriba Express enables users to rapidly capture, view, edit, organize and re-use media files, significantly reducing time and money spent on media creation and management." Arriba Soft announced separately that it anticipated sales of one million units of its Arriba Express at a retail price of $149 each or US$149 million in total in the first year. In fact, Arriba Soft's Michael Lyons produced a "Eye On Business" seven minute infomercial about how Arriba Express could be used to download an "embarrassment of riches" from the Internet, using its WebVac, to satisfy the users needs, all without asking for permission! Click on http://www.batv.com/batv/frmprof.html Follow the index to Arriba Soft Corporation. Requires RealPlayer.

Aware that Arriba Soft's use of his images to sell its Arriba Express software was direct copyright infringement, Kelly sued Arriba Soft [Case SA CV 99-560 GLT (JW)]. In March 2000, Judge Gary Tyler ruled against Kelly, in response to a motion for summary judgement, and found that Arriba Soft's use of thumbnails and full sized images was fair use.

Kelly, with the financial backing of the American Society for Media Photographers and financial support of the Graphic Artists Guild, filed an appeal [00-55521] to the Ninth Circuit Court of Appeals on March 22, 2000 through his Attorney's, Charles Ossola and Jule Sigall, Arnold & Porter, Washington, DC, and Steven L. Krongold, Arter & Hadden, Irvine, California. Kelly's brief brought the issues of the original filing back to the Ninth Circuit Court of Appeals. Arriba Soft and subsequently Ditto.com had made every effort to ignore, to forget or quickly dismiss the issues of "Download To Arriba Express" and the small download buttons beside each thumbnail image which allowed the user to download the full sized image without actually ever visiting the website and to not see the image in its original context, its intended purpose and its copyright management information. They will not be ignored, forgotten or dismissed!

On February 6, 2002, the Ninth Circuit Court of Appeals announced its decision in Kelly v Arriba Soft. In favor of Ditto.com, it did uphold the right of image search engines to display thumbnail copies of images within their search results so long as the website URL was linked from the thumbnail. In favor of Kelly, it found that Arriba Soft's display of the framed, deep linked full sized image, was not fair use. Further, it found that Kelly suffered harm as a result of the Arriba Soft's display of full sized images, deep linked and framed at the Arriba Vista Image Searcher. The Ninth Circuit Court of Appeals remanded the issue back to Judge Taylor for determination of damages. The decision clearly determined that image search engines cannot display full sized images out of context of the website on which they were originally displayed; image search engines can only link from the thumbnail to the website!

On March 23, 2002, Sorceron, the current owner of Arriba Soft, which now is called Ditto.com, had its Attorneys appeal the ruling to the full court for an en banc hearing. The Electronic Frontier Foundation also filed an amicus brief in which it made assertions that linking, the backbone of the Internet, was in jeopardy if the ruling in favor of Kelly was not rolled back. Despite the attempt by the "Digital Freedom Fighters" at the Electronic Frontier Foundation to create mass hysteria with their widespread publicity on the assertion that Kelly would destroy the Internet, this "Parade of Horribles Led by a Strawman" was clearly and definitively refuted by Kelly's brief filed on March 26, 2002. The American Society of Media Photographers, joined by The Author's Guild, North American Nature Photographers Association, National Music Publishers' Association and the Harry Fox Agency, also filed an Amici Curiae brief.

The next action in the case will come when the Ninth Circuit Court of Appeals rules on the appeal by Sorceron/Ditto.com for an en banc hearing.

On October 10, 2002, the Ninth Circuit Court of Appeals requested Kelly to provide additional information about his presentation of derivative rights at the District Court level. Kelly provided documentation that the record was fully developed in Kelly's Supplemental Brief 10312002. Arriba Soft Corporation, Inc., now known as Ditto.com, responded in Arriba Soft's Supplemental Brief 11252002 with an attempt to completely recast the case as an issue of thumbnails and an out of place attempt to recast its Arriba Vista Image Searcher as an Information Location Tool (17 U.S.C. §512(d). Kelly, in his Kelly's Response To Arriba Soft on December 12, 2002, noted that Arriba Soft's Arriba Vista Image Searcher was not an information location tool but, along with its Arriba Express system, was actually a stock photo service. It was the infringer and was not merely pointing to a potentially infringing link, the true test of an "information location tool"! In the midst of this, Google.com (in the form of Jennifer M. Urban and Deirdre K. Mulligan of the Samuelson Law, Technology and Public Policy Clinic, UC at Berkeley School of Law (Boalt Hall), mistakenly believed that it could file an Amicus Curiae but did offer some rather novel points. Its brief continued the mistaken train of thought of the Electronic Frontier Foundation and Chilling Effects that website owners must use robots.txt to protect their copyright. Nowhere is this written in copyright law!

For What It Is Worth, we received an E-Mail, ostensibly from Stephen Schmitt, You Are An Idiot. There is apparently a Stephen Schmitt, Vice President Engineering, at Ditto.com. Is this an authorized comment on Kelly v Arriba Soft?

On Monday, July 7, 2003, the Ninth Circuit Court of Appeals issued its Order and Opinion" in the matter Kelly v Arriba Soft. The opinion vacated its previous decision of February 6, 2002, and remanded the issue of Kelly's claim of infringement for framing of full sized images to Judge Taylor for hearings. Kelly will proceed with the case on this issue at the earliest opportunity and seek damages against Ditto.com's use of his full sized images since there is significant case law favorable to his position in the matter.

April 19, 2004. After attempts to settle the matter of damages, in light of the favorable ruling by the Ninth Circuit Court of Appeals, Kelly returned to District Court and, on March 18, 2004, successfully obtained a Default Judgement against Arriba Soft Corporation AND its successor company Ditto.com which continues to operate at http://www.ditto.com and remains at its longtime headquarters in Napierville.

"Judgement shall be entered in favor of Plaintiff LESLIE A. KELLY, and individual and d/b/a LES KELLY PUBLICATIONS, LES KELLY ENTERPRISES, and SHOW ME THE GOLD and against Defendant ARRIBA SOFT CORPORATION, aka DITTO.COM in the sum of $345,000.00, plus reasonable attorney's fees in the sum of $6,068.20. s/Gary L. Taylor, UNITED STATES DISTRICT COURT JUDGE" March 18, 2004

Letters To The Editor
FT.com
Castle House
37-45 Paul Street
London EC2A 4LS
England

Ms. Patti Waldmeir
Columnist
Financial Times
Washington, DC

Dear Editors:
Dear Ms. Waldmeir:

On this date I received three e-mails, from very UK young adult polite to improper characterization as "obscenely American", the author of a "potentially dangerous" lawsuit that "could disrupt the entire internet" and one particularly virulent (but somewhat lacking in spelling skills) person who offered "Thanks for helping destroy the Internet, instead of hiring a competant [sic] webmaster" and closed with "Hoping you get an incurable disease." And, "You are a walking contradiction. I find it hilarious that you use links in your site, yet you sue someone for using links in theirs. Way to ruin the internet, jackass." It took only a few minutes to chase down the source of confusion for this set of young people, misled as they were, to your article of April 4, 2002: INSIDE TRACK: A ruling that robs the public domain: A landmark copyright case threatens to render illegal all links on the web .

It became clear as I read through your article that all of their crazy ideas about my lawsuit, and their characterizations of my character, except for the "incurable disease" thing, sprang from your words written so eloquently yet so ignorant of the facts of Kelly v Arriba Soft and the decision of the Judges of the Ninth Circuit Court of Appeals.

I was particularly concerned by the one writer, who attempted to disguise himself through a fake e-mail return (these young folks don't understand that older folks actually understand e-mail protocol, too), that hoped I would get an incurable disease, and saddened that the speller of "competant" might not have learned his English properly. I am proud to be an American but certainly not one who is obscene, a jackass or potentially dangerous to the Internet.

All of this makes me very much concerned about the exposure of the incorrect and inaccurate information contained in the article which you authored wherein you relied upon biased and oft incorrectly referenced legal opinions as served up by the "Digital freedom fighters" of the Electronic Frontier Foundation and their Amici brief before the Ninth Circuit Court of Appeals.

Despite your presentation of the EFF brief among your own comments about copyright, and the comments made by the young folks, my case does not threaten the fabric of the Internet. It does not threaten linking; it addresses only the specific issues of Arriba Soft's Arriba Vista Image Searcher's inline linking and framing, a matter addressed by the Ninth Circuit Court of Appeals and which reflects the correct outcome of the issue at hand. It is your and the EFF's over reaching of interpretation of the decision that is "far reaching", not the Ninth Circuit Court. Fortunately, hundreds of thousands of writers, authors, artists and photographers are praising the decision in support of the rights of intellectual property owners who wish to be able to successfully use the Internet for their own business pursuits.

I invite you to review the facts of my case and my brief , prepared by some of the sharpest legal minds in the business, Charles Ossola and Jule Sigall, Arnold & Porter (based right there in Washington, DC) and Steven L. Krongold, Arter & Hadden, Irvine, California. Hopefully you might find your way to understand the facts of the case rather than falsely credit me for the intended destruction of what Al Gore claims to have invented? Wasn't he in Washington when he made the claim? Maybe the three of us could "do lunch" in Georgetown and sort all of this out if you and Al are available?

Or, if not lunch, perhaps we could read together the copyright notice that appears in your highly acclaimed "ANATOMY OF A MIRACLE: THE END OF APARTHEID AND THE BIRTH OF THE NEW SOUTH AFRICA" (Patti Waldmeir. New York: W. W. Norton, 1997) We could then compare that statement with the statements that appear with my own intellectual properties found in numerous books and on my websites and those of millions of others more copyright owners from around the world. This might prove more interesting than any lunch in Georgetown!

Sincerely yours,

Leslie A. Kelly
Plaintiff, Kelly v Arriba Soft, Inc.
President
Les Kelly Enterprises
NetCopyrightLaw.com

FOR IMMEDIATE RELEASE

Update: Kelly v Arriba Soft

Sorceron (Ditto.com) Requests "En Banc" Hearing; Kelly Responds To Request By Ninth Circuit Court With Message That Decision Clearly Supports Copyright Law, Owners Of Intellectual Property And Allows Search Engines To Link Directly To Websites Just As With Text; Ditto.com Morphs Again As It Seeks Viable Business Model

Huntington Beach, CA. Monday, April 1, 2002. Leslie A. Kelly, Plaintiff, Kelly v Arriba Soft, Inc., 00-55521, today released the text of his response to the Sorcercon (Ditto.com, formerly Arriba Soft, Inc.) appeal to the Ninth Circuit Court of Appeals for an "en banc" hearing to the decision released on February 6, 2002, by Judges Betty B. Fletcher, Thomas G. Nelson and Marsha S. Berzon.

Kelly's Attorneys in the appeal, Charles D. Ossola and Jule L. Sigall, ARNOLD & PORTER, Washington, DC, and Steven L. Krongold, ARTER & HADDEN LLP, Irvine, California, responded on March 26, 2002. They were supported by an Amici Curiae brief filed by Victor S. Perlman, American Society of Media Photographers, Inc., The Authors Guild, Inc., North American Nature Photography Association, National Music Publishers' Association and the Harry Fox Agency.

According to Kelly, "What began as a simple case of direct copyright infringement by a rogue business operation, Arriba Soft's Arriba Vista Image Searcher, in early 1999 has evolved into an important legal decision that clears the way for use of images, and text, on the Net by photographers, artists, writers, et al, without fear that they can be legally ripped off by image search engines or others. It also clearly establishes that copyright law does apply to intellectual property on the Internet. It establishes important case law for use of thumbnails, for linking, inline linking and framing. The case began when Steven L. Krongold filed on my behalf on April 6, 1999, in the District Court in Santa Ana, California.

"In clear language, supported by case law, Ossola, Sigall, Krongold and Amici Curiae, fully dispel the flawed notions raised by Defendant Ditto.com that the Ninth Circuit Court of Appeals' ruling erred in its decision that Arriba Soft's Arriba Vista Image Searcher display of full sized images was copyright infringement. My legal team has also clearly established that the Sony case fully supports Plaintiff Kelly! Ditto.com has argued numerous times that there has never been any proof that Kelly's images were displayed, despite the fact that Kelly has provided copies of images, and even Ditto.com has attached a copy provided by Kelly of his own image in display as part of their brief requesting "en banc" hearing. Of course, there is no legal requirement for Kelly to prove that his images were actually displayed, reaffirmed by "Nimmer on Copyright" (Melville B. Nimmer & David Nimmer, 1999). However, for the first time, publicly, my Attorneys have pointed out that even if it were required, Arriba Soft has acknowledged, 'When plaintiff's images were removed from the database, most records regarding the images were inadvertently and permanently deleted as well.'

"No wonder Ditto.com claims that I cannot prove that anyone accessed my images. They destroyed their own records that show their display of my images.

"My Attorneys also successfully disputed the flawed notions raised by Internet Giant Google.com and the Electronic Frontier Foundation that the Ninth's decision jeopardized all linking. The decision does not do this at all. I am pleased to announce that a pdf copy of my brief is now available at my website NetCopyrightLaw.com http://netcopyrightlaw.com/pdf/kellybrief03262002.pdf. The ASMP et al brief can be located at http://netcopyrightlaw.com/pdf/ASMPbrief03262002.pdf.

"I am again grateful to my fellow photographers, artists and members of the various organizations mentioned above, particularly the American Society of Media Photographers, and the Graphic Artists Guild, for their financial and legal support in Kelly v Arriba Soft!

"As a result of my review, independent of the decision by the Ninth Circuit Court of Appeals, of the major image search engines (Google, PicSearch, Alta Vista and Lycos (FAST), it appears that Google may be most at risk based on the decision by the Ninth Circuit Court of Appeals in the manner in which it displays images. Google offers a split screen wherein the 'scaled down' image, which in the case of smaller images may actually be full size, appears above the actual web page on which the image appears. Google does not, however, offer advertising within the split screen.

"PicSearch and Alta Vista offer split screens with the thumbnail displayed again at the top of the page with the web page below. PicSearch does not yet offer advertising at its website today. Alta Vista does not offer advertising with the second display of the thumbnail.

"Lycos has two displays of the thumbnail before arriving at the full page of the website. Advertising appears with each thumbnail display.

"As clearly demonstrated by Ossola, Sigall and Krongold in the Kelly brief, Arriba Soft and Ditto.com clearly controlled how they chose to display thumbnail and full size images. So, too, this follows that it can be shown that each of the major search engines have made a conscientious decision of how to display images. The question, then, follows: Do the current displays by image search engines comply with the decision in Kelly v Arriba Soft? Why is a split screen necessary? Why is a split screen not used for links to text but is used for images?

"It is curious to me," notes Kelly, "why a search engine would insist on adding additional display of the images, thumbnail or 'scaled down', stripped from their original context and without identifying text, inline linked (just the individual .jpg or .gif, etc), but they do not do the same for text. Do they do this so that they can claim extra hits so that they can increase advertising fees? Is there a useful 'fair use' argument here?

"It is important, too, to note that the Ninth Circuit Court of Appeals does not touch on the subject of robots.txt. This, despite the belief of many 'techies', is not a part of the copyright law. The argument of many, to include Dr. Henry Gladney, IBM-Almaden, is not supported by case law nor the statutes themselves.

"As for Ditto.com itself, now owned by Sorceron, Inc., it has again morped into an enterprise with a new company name, TLS Technologies, LLC, and new look as it moves into yet another business model as it seemingly attempts to find its way as a viable image search engine. It appears to be in compliance with the Ninth Circuit Court of Appeals with respect to its use of thumbnails and direct links to website. This change, that began about a week prior to the February 6, 2002, announcement by the Ninth Circuit Court of Appeals, stands in contrast to the major search engines with image searches."

The Sorceron (Ditto.com) brief can be accessed via a link at http://perkinscoie.com/webrelease/bayarea/jennison.htm

The Electronic Frontier Foundation brief can be accessed via a link at http://www.eff.org/IP/Linking/Kelly_v_Arriba_Soft/20020227_eff_pr.html

There is no known Net link to the Google brief.

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FOR IMMEDIATE RELEASE

Contact:
Leslie A. Kelly (714) 846-0437 leskelly@concentric.net
Charles Ossola, Arnold & Porter, Washington DC (202) 942-5000
Steven Krongold, Arter & Hadden, Irvine, California (949) 252-7500
Vic Perlman, American Society of Media Photographers, Inc., Philadelphia (215) 451-2767
Steven Schubert, Executive Director, Graphic Artists Guild, New York, NY (212) 791-3400

Huntington Beach, CA. February 6, 2002 - Leslie A. Kelly, Plaintiff, Kelly v Arriba Soft, Inc, announced today that the Ninth Circuit Court of Appeals has ruled in his favor for copyright infringement and remanded the case back to the US District Court, Santa Ana, California, for determination of damages.

"I am quite pleased to learn that my original case filed in April 1999 against Arriba Soft has come down in my favor. The Ninth Circuit Court of Appeals has determined the case as it was filed, a simple case of vicarious copyright infringement, by Arriba Soft, Inc., whose true use was disguised as an "image search engine". I was not surprised by the wisdom of the Circuit Judges who reached the decision. I am quite pleased to see that copyright owners worldwide now have case law to enhance their protection from rogue start up image search engines, such as Arriba Soft's Arriba Vista Image Searcher and Diggit! Image Search, and other infringers that seek to make "easy millions" using intellectual property without license.

"I am also pleased to see the decision that image search engines can use thumbnail images under "fair use" so long as they link directly to the webpage to show the image in its original context as it was intended by the website owner! This puts them on the same par as text engines and will enhance their usefulness for all concerned. To isolate images and present them outside the context of the original purpose of the website owner is now very clearly illegal!

"It should be carefully noted that this decision affirms that existing US Copyright Law protects images located on the Internet. Kelly v Arriba Soft will now take its place with other Internet copyright law decisions such as recent important cases won against Napster (music) and Tasini v NY Times (republication of news stories) and Jerry Greenberg v National Geographic (reuse of images on CD-ROM).

"I wish to thank my Attorneys, Charles Ossola, Arnold & Porter, Washington, DC, who handled the appeal process before the Ninth Circuit Court of Appeals, Jule Sigall, Arnold & Porter, who assisted with the case, and to Steven L. Krongold, Arter & Hadden, Irvine, CA, who prosecuted the case before the US District Court in Santa Ana. I also wish to acknowledge the strong support of creators of intellectual property worldwide who have been supportive of my actions. The list includes Vic Perlman, American Society of Media Photographers, Inc., Philadelphia, Steven Schubert, Graphic Artists Guild, New York, The Author’s Guild, Inc, North American Nature Photography Association, National Music Publishers' Association, The Harry Fox Agency, Inc., American Institute of Graphic Arts, American Society of Journalists and Authors, Visual Artists and Galleries Association, Inc., The National Writers Union, The Picture Agency Council of America, The Association of Medical Illustrators, and The Society of Illustrators."

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Anyone wishing further information or to interview Leslie A. Kelly may contact him by e-mail leskelly@concentric.net.

Les Kelly Enterprises

15802 Springdale St., Suite 14

Huntington Beach, CA 92649-1765

E-mail:leskelly@deltanet.com

(714) 846-0437