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Internet Press Coverage
FOR IMMEDIATE RELEASE - Kelly v Arriba Soft (now Ditto.com
but owned by Sorceron.com) Heard On September 10, 2001, Pasadena,
California.
Huntington Beach, California. Tuesday, September 11, 2001. Charles
D. Ossola, a partner at Arnold & Porter in Washington, D.C. and
the head of that firm's Intellectual Property & Technology Practice
Group and Steven L. Krongold, a partner with Arter & Hadden,
Irvine, California, and Leslie A. Kelly's Attorney, appeared
before the Ninth Circuit of Appeals on September 10, 2001, in
Pasadena, California. In post hearing discussions, both felt
that the hearing went well for Kelly. The Judges asked very pertinent
questions about the issue, including why hadn't the case been
settled?
It is anticipated that a decision will be handed down within
six to nine months. Kelly anticipates that the case will be decided
in his favor with a potentially significant award for damages
as the result of vicarious infringement by Ditto.com. And, of
course, there is the potential that those victims of infringement
by the Arriba Vista Image Searcher will come forward individually
or in a class action to seek their own damage awards from Ditto.com
(now owned by Sorceron.com).
A decision in favor of Kelly and copyright owners everywhere
will, of course, raise issues for other search engines which
feature image searches, i.e., AltaVista, Lycos, FAST, Google,
Yahoo, Ditto.com and PicSearch.
An excellent summary of the issues before the Ninth Circuit Court,
Is Theft in the Eye of the Beholder?, was written by Times writer
Lisa Guernsey and appeared in the September 6, 2001, issue of
the New York Times.
FOR IMMEDIATE RELEASE - Kelly v Arriba Soft (now Ditto.com) To Be Heard
September 10, 2001, Pasadena, California
Huntington Beach, California. Monday, July 9, 2001. Fresh from its
recent decision against Napster, the Ninth Circuit Court of Appeals will
hear oral arguments in Kelly v Arriba Soft, Inc., on Monday, September
10, 2001, according to Leslie A. Kelly, Photographer. Kelly notes that
"With the recent Supreme Court victory in Tasini v New York Times in
digital rights to text, the demise of the original Napster, makeovers at
MP3 and Scour, we are quite hopeful that the Ninth Circuit Court of
Appeals will roll back the District Court decision in my case about the
use of digital images by image search engines under the guise of 'fair
use'. This would close the gap that presently exists regarding certain
rights to use of images on the Net."
According to Kelly, "It has now been more than two years since I filed
against Arriba Soft., Inc., in the first copyright infringement case
against a so-called image search engine. Since then, that search engine,
http://www.arribavista.com, has been changed to http://www.ditto.com,
and gone through many face lifts and even more twists and turns in an
effort to create a financially viable medium for its investors. Now,
despite burning through more than $31 million of venture capital, the
company created by Michael J. Lyons, Elmhurst, Illinois, has apparently
failed, all of its employees have been laid off and its offices in
Naperville, Illinois, Burlingame, California, and New York are closed.
"What began in 1998 as a company built upon the use of images owned by
everyone but itself and boasting that it would generate first year sales
of more than $149 million of its proprietary software with full access
to its database "mined" from the Net, Ditto.com is apparently now just a
shell of its former self.
"According to an interview in the October 1997 edition of Chicago
Software Newspaper, Michael J. Lyons, Founder & Chairman of the Board,
stated, in part, about his four "successful" career startup operations:
'I’m as pumped up today as I was when I started my first company because
the Net has created a whole new world and the cowboys are back. It is
the entrepreneurs who dominate that world right now.' Less than four
years later, ousted out of his corporate digs and operating from
Elmhurst, Illinois, as a one-man business, Lyons is reportedly
attempting to sell his inventory of images harvested from the Net and
housed at http://www.ditto.com."
Chicago Sun-Times columnist Darcy Evon, in a June 4, 2001, story,
"Cash-rich Ditto.com Returns To Home Turf", quotes Lyons
as saying, "'Cash isn't king anymore. You have to get your company
to break-even so that you can have long-term staying power or sell
it.'" See related article at http://www.i-street.com/newsarchive/yr2001/mn06/06ditto.asp.
Comments Kelly, "Even though Lyons says that he has more than $500,000
left in his bank account, his story is just another case of dot.com
failure. Any business built upon the theft of intellectual property of
others is destined to fail. ArribaVista.com and Ditto.com are perfect
examples of what happens when an entrepreneur lets their ego get in the way of common sense, and the law, and then tries to ride like a 'cowboy' over the rights of others!"
Kelly vs Arriba Soft (ditto.com) net copyright law case appeal reply
brief filed by Arnold & Porter at Ninth Circuit Court on October 5,
2000. ditto.com was joined by Alta Vista, Google and Yahoo in a badly
flawed Amici Curiae brief that claimed Kelly was attempting to shut down
the Internet rather than seek damages for infringement by Arriba Soft's
Arriba Vista Image Searcher for its illegal use of his images. Kelly
notes that thousands of other artists and photographers have joined with
him, led by the American Society of Media Photographers, Inc., and
Graphic Artists Guild, in support of his infringement claim. Read
entire brief here.
Kelly vs Arriba Soft (ditto.com) net copyright law case appeal filed by Arnold & Porter at Ninth Circuit Court on July 17, 2000, in Leslie A. Kelly’s fight to appeal flawed District Court decision by Judge Gary L. Taylor.
Read entire brief here.
MP3 Judge Sends Clear Message To Net Cowboys!
"Some of the evidence in this case strongly suggests that some companies operating in the area of the Internet may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law. They need to understand that the law's domain knows no such limits."
U.S. District Judge Jed S. Rakoff, Southern District of New York, September 6, 2000, Ruling on willful infringement in MP3 case.
Amici curiae brief filed by American Society of Media Photographers, Inc., The Author’s Guild, Inc, North American Nature Photography Association, National Music Publishers' Association and The Harry Fox Agency, Inc. on behalf of Leslie A. Kelly, on July 24, 2000.
Read entire brief here.
[Please note that the ASMP, et al, amici curiae brief reminds the Court that Arriba Soft Inc (now ditto.com) CEO Michael J. Lyons (now Michael J. Lyons, Founder & Chairman of the Board, ditto.com), in an interview in the October 1997 edition of Chicago Software Newspaper, stated, in part, about his four successful career startup operations: "I’m as pumped up today as I was when I started my first company because the Net has created a whole new world and the cowboys are back. It is the entrepreneurs who dominate that world right now." (Italicized emphasis provided by Kelly) And, given the number of lawsuits involving copyright infringement involving Arriba Soft, Inc. (now ditto.com), Scour.Net, MP3.com and Napster, the entrepreneurs are learning that being a cowboy with respect to unlicensed use of images, music and movies may not be so much fun after all!]
Amici curiae brief filed by Graphic Artists Guild, 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 on behalf of Leslie A. Kelly, on July 24, 2000. Read entire brief here.
If you need to download Adobe Acrobat to read these files, Click here to download.
·Amicus Curiae Brief Filed By Graphic Artists Guild In Support Of Intellectual Property Appeal By Photographer Leslie Kelly
·Leslie A. Kelly writes to iMP concerning Kelly v. Arriba Soft, Inc.
We have been contacted by one of the principals in the case Kelly v.
Arriba Soft, Inc., concerning Henry Gladney's story, which discussed the
case. Kelly v Arriba Soft, Inc. involves alleged copyright infringement
as the result of unauthorized use of images as part of a new image
search engine which aggregated the database to market its proprietary
software. The Judge did determine prima facie infringement but balanced
that use with "fair use" and found in favor of the defendant. The case
is now in appeal. Arnold & Porter (Washington, D.C.), along with support
from the American Society of Media Photographers, Inc., and Graphic
Artists Guild, and eleven additional amici, is handling Kelly's appeal
which will come before the Ninth Circuit Court of Appeals in 2001.
Recent decisions concerning Napster and MP3 point to the timeliness of
this issue; we present the letter in full and encourage readers to
review the original story as well as the references given here to the
ongoing case.
Dear iMP Editor:
While doing some research on the Web, I discovered the article authored
by Mr. Henry Gladney, "Are Intellectual Property Rights A Digital
Dilemma?", (iMP, February 2000)at http://www.cisp.org/imp/february_2000/02_00gladney.htm.
I was a bit surprised to see his analysis of measures that he speculated
that I did not consider and the assumptions made in his otherwise
apparently erudite article about protection of digital media assets. His
failure to contact me or my Attorney regarding the actual facts in the
case has, unfortunately, led to erroneous speculation on his part.
From my reading of the article, I can infer only that his apparent
knowledge comes from the reading of the published decision in the case
Kelly v Arriba Soft that is now on appeal.
Unfortunately, Mr. Gladney’s paper with its incorrect assumptions has
likely gained widespread circulation as an accurate and correct
statement of facts in the matter; perhaps to include the erroneous
presumptions that may be restated in time as facts indeed by readers.
Numerous intellectual property defense attorneys may attempt to use his
suggested defense in the matter in which he used my case to graphically
suggest, one sided and completely without foundation, that my purported
lack of knowledge and failure of due diligence shines through to allow
him to richly illustrate his points.
"Serendipity." "Probably." These are unlikely research terms to
establish facts upon which to build a foundation for a legal defense
against charges of copyright infringement. Each of the elements
mentioned in his article were considered and discussed with Internet
Service Providers and Web developers. My Web sites were well protected
by sixth and seventh options that he did not consider. One was a
mechanism that apparently remained hidden from view, even from his (or
his staff’s) repeated visits to my Web sites. I noticed that Mr. Gladney
or someone from IBM closely monitored my Web sites after I filed my
lawsuit. In fact, I even established a hard copy file to document the
frequent visits. almaden.ibm.com appears many times
[wfp2.almaden.ibm.com 198.4.83.49] in the stats files for
http://goldrush1849.com. It was this Media House system that led me to
the infringer who used my images and the subsequent filing of my
copyright infringement lawsuit.
The seventh element, copyright law itself, is old fashioned but
certainly not out of style. The Web sites were, and still are, clearly
marked with appropriate copyright statements. The images themselves are
registered in accordance with copyright law.
The infringer, in this case, was a company that operated its Web crawler
without regard to robots.txt in its effort to build a multi-million
image database to support its marketing of a software program.
Some of the measures that Mr. Gladney suggested cannot protect an image
from a rogue Web crawler, one which is not programmed to follow robots
exclusion protocol; digital marking and overwriting do not stop the
infringer, they do however make it easier to identify the image when the
infringer is found!
In my case, plaintiff did exercise due diligence with full review of
existing technologies. In our opinion (to include numerous trade groups
who have joined in support), the District Court Judge did not apply
copyright law correctly. In my opinion, resorting to speculation to make
points clearly illustrates a lack of due diligence. Mr. Gladney’s
points, by the way, are not supported by reference to pertinent sections
of copyright law to establish credibility in their potential
application. Lawyers thrive on references.
I invite your attention to a statement made September 6, 2000, by U.S.
District Judge Jed S. Rakoff, Southern District of New York, September,
ruling on willful infringement in the MP3 case:
"Some of the evidence in this case strongly suggests that some companies
operating in the area of the Internet may have a misconception that,
because their technology is somewhat novel, they are somehow immune from
the ordinary applications of laws of the United States, including
copyright law. They need to understand that the law's domain knows no
such limits."
Copyright law does not require that copyright owners utilize the
technological measures proposed by Mr. Gladney. Just because the
Internet is an easy medium in which to copy material posted therein, as
Mr. Gladney noted, copyright law still protects those who do so. New
technology available for those who wish to use the Internet is good and
will improve communications and data exchange well into the Millennium.
However good it may be, its developers and entrepreneurs of new
technology cannot attempt to utilize the copyrighted works of others for
profit and then seek to blame the copyright owners because they did not
utilize any or all of these measures that he has proposed.
Interested readers of iMP may follow Kelly v Arriba Soft, Inc., to its
conclusion at:
http://netcopyrightlaw.com
With best regards,
Leslie A. Kelly
Les Kelly Publications
Huntington Beach, California
leskelly@deltanet.com
[Mr. Kelly is a 1970 MBA Graduate of McNeese State University, Lake
Charles, Louisiana, and is the photographer and/or author of nine photo
books on the subjects of Laura Ingalls Wilder, the Amish and the
California Gold Rush. He is a member of American Society of Media
Photographers, Inc. and the Graphic Artists Guild. His travel writing
and/or photography have been published in more than 200 magazines and
books since 1973. Mr. Kelly operates seven Web sites in support of his
business activities.]
Released: September 22, 2000
iMP Magazine,
http://www.cisp.org/imp/september_2000/09_00pages-insight.htm
© Copyright 2000. Leslie A. Kelly. All rights reserved.
·Reader's Reaction to "This Just Pisses Me Off"
·This Really
Pisses Me Off by Julia Ptasznik of Visual Arts Trends is an excellent summary of the actual
lawsuit filed in April 1999 which sums up the case as it really was before Judge Taylor ignored them!
·Information superHIGHWAY ROBBERY is presented by Icograda, The international Council of Graphic
Design Associations which is the professional world body for graphic design and visual communications.
·How should the government protect copyrights in light of new technology?
Copyright Law Essential To Well-Being of Internet by Rep. Howard Berman
·Arnold & Porter to Handle Appeal of Net Copyright Law Case
·Search Engine Disputes
·New York Times, April 27, 2000, Circuits: NEWS WATCH; Judge Backs Search Engine's Use of Copyrighted Images
(Requires FREE Registration for access to New York Times and payment of $2.50 to read full article).
Copyright Protection on the Internet
By: Steven L. Krongold
The Internet has spawned a variety of novel legal issues. One issue that
has gained national attention is the extent to which websites can offer
"free" access to a third party’s intellectual property whether by
converting the protected work into a digital format (e.g. MP3) or by
using an automated web crawler to search a site and create thumbnail
versions of the images for users to download at will. In fact, the
practice of crawling another’s site to extract even non-copyrightable
material may be illegal under a recent district court decision.
The MP3 Lawsuit: Digital Versions of Music CDs
MP3 technology allows for the fast and efficient conversion of compact
disc recordings into compressed digital files that can be downloaded
over the Internet; the sound quality is virtually identical to the
original CD. MP3 launched its "my.mp3.com" website by copying tens of
thousands of original CD recordings onto its computer servers which
enabled users to download and replay the recordings from any computer
with an Internet connection. Users are not charged a fee, but must prove
they own the CD version of the recording by inserting the disc in the
CD-Rom drive for a few seconds or purchasing the CD from an online
retailer.
The Recording Industry Association of America (RIAA), on behalf of
various records companies, sued for copyright infringement. The court
held that a prima facie case of infringement had been shown. The court
then analyzed whether the copying was protected under the "fair use"
doctrine. See 17 U.S.C. §107. In determining fair use under the
Copyright Act, the court must consider four factors: (1) the purpose and
character of the use, including whether such use is of a commercial
nature or for nonprofit educational purpose; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion used
in relation to the work as a whole; (4) the effect on the potential
market for or value of the copyrighted work.
The first factor involves not only a consideration of whether the use is
commercial but also whether the use is "transformative," that is,
whether it serves to create a new form of expression, infusing the
original work with new meaning or understanding. The District Court in
New York held that MP3 simply retransmitted unauthorized copies of the
music in a different format and thus added no "new aesthetics, new
insights and understandings" to the original music. Moreover, MP3
attracts revenue from advertising and other sources even though it does
not charge users a fee; thus, MP3 engaged in commercial exploitation of
protected works.
The other fair use factors weighed in favor of plaintiffs. The Court
rejected MP3's argument that it provides a useful service to consumers:
"Stripped to its essence, defendant’s ‘consumer protection’ argument
amounts to nothing more than a bald claim that defendant should be able
to misappropriate plaintiffs’ property simply because there is a
consumer demand for it. This hardly appeals to the conscience of
equity."
The Arriba Soft Lawsuit: Thumbnails of Photographs
Images rather than music are at issue in another recent case testing the
boundaries of the "fair use" doctrine as it applies to websites and the
Internet. In Kelly, the plaintiff is a photographer who uses his
copyrighted works to promote package tours
(http://www.showmethegold.com) and books (http://www.goldrush1849.com
and http://www.liwms.com). The defendant operates a visual search
engine/stock photography service which enables users to locate and
download copyrighted images on the Internet (http://www.arribavista.com
and http://www.ditto.com). The defendant also sold media management
software called "Arriba Express" that contained a "webvac" function
which allowed users to import (or "vacuum") multimedia files from other
Web sites directly into Arriba Express.
Like MP3, Arriba copied protected works onto its servers without
permission and without paying compensation to the owners. Users are able
to view and download thumbnail versions of the images for free; Arriba
earns its revenue from advertising, licensing, and other sources. In the
initial version of the website, when users clicked on the thumbnail, a
window displayed the full-size version of the image, its dimensions, and
the originating address of the image file. Arriba compiled its database
of over two million images by crawling third-party sites with a software
robot or "spider" and vacuuming those images into its servers. Some of
these Websites were accessed despite restrictions such as "robots.txt"
which tells spiders to stay out.
In Kelly’s suit for copyright infringement, the District Court in
California ruled that "fair use" protected the defendant’s conduct, in
part, "because of the established importance of search engines and the
‘transformative’ nature of using reduced versions of images to organize
and provide access to them." The Court was persuaded that defendant’s
service provided a better way to find images on the Internet. The Court
was impressed with the new technology of the search engine, broadly
interpreting the concept of "transformative" use even though other
factors weighed against fair use (e.g., the images were at the core of
artistic expression, entire images were copied in order to create the thumbnails,
and the images were used for a commercial purpose).
Contrast the California Court’s liberal bent on "transformative" use
with the New York Court. In one case, the court found that thumbnails
(which are merely smaller versions of the original) constituted a
transformative use of the copyrighted work in the context of a
search/index service. In the other, the court held that MP3 files (which
are digital files of music) did not constitute a transformative use of
the original CD recording in connection with a site that performed a
search/index function as well.
In Kelly, the Court downplayed the significance of Ditto’s webcrawler
which failed to honor restrictions placed on other websites. The
integrity of the defendant’s webcrawler became a major issue in another
recent case which gained national attention.
The eBay Lawsuit: Webcrawling Constitutes Trespassing
The legality of spidering or crawling a competitor’s website is at issue
in a case pitting online auction giant eBay against Bidder’s Edge, an
upstart auction aggregator–a search engine that enables users to find
items being auctioned at several sites simultaneously. To compile its
auction listing, Bidder’s Edge uses a spider to extract information
which in itself is not protected by copyright. However, eBay sued for
trespass of its computer system. eBay also claimed unfair competition in
that Bidder’s Edge gave incomplete or misleading information, and was
unfairly profiting from eBay’s business.
On May 24, the U.S. District Court granted a preliminary injunction
barring Bidder’s Edge from using its spiders to crawl eBay’s site. The
Court based its ruling on the trespass theory, finding that eBay’s
servers were personal property and that Bidder’s Edge used a portion of
those servers without permission. The Court was persuaded that searches
conducted by Bidder’s Edge slowed, or had the potential to slow, eBay’s
service to its subscribers.
Trespass was a novel legal theory since eBay could not demonstrate
copyright protection for the factual information on its auction site. In
an earlier high-profile case, the District Court had rejected the notion
that copyright infringement occurs when one extracts factual data
carried on publicly available web pages and uses those facts if the
expression and method of presentation is not copied.
The Napster Lawsuit: The Napster Is Not An ISP/OSP
Closely related to the MP3 litigation is the Napster lawsuit. Napster is
small Internet start-up based in San Mateo, California, which makes its
proprietary MusicShare software freely available to Internet users.
Using the software, "napsters" can search for, play or download MP3
files on another user’s hard drive.
RIAA sued Napster for vicarious and contributory copyright infringement
on the theory . The Court held that Napster did not act as an online
service provider such that the "safe harbor" provisions of the Digital
Millennium Copyright Act, 17 U.S.C. §512(a) limited its exposure to
monetary damages. The Court noted that Napster also acts like a search
engine or free information location tool through which users can find
"millions of songs" online.
Conclusion
Each of these cases has wide-ranging implications for the Internet. On
one side are those who believe the Internet was meant to be a seamless
web of information, free and open to all users. On the other side are
those who believe the Internet can and should become a profitable
extension of normal channels of commerce. In order to flourish in this
environment, the courts must protect the intellectual property rights of
those who provide the content on the Internet, whether that content
consists of music, video, photographs or film.
[Note: Mr. Krongold practices intellectual property litigation in Costa
Mesa, California. Mr. Krongold was lead attorney in the Kelly v. Arriba
Soft litigation. An appeal to the Ninth Circuit Court of Appeals is now
pending.]
· The following article appeared with a color photograph of Leslie A.
Kelly and Attorney Steven L. Krongold on the front page of the Monday,
February 21, 2000, Business Section of the Los Angeles Times. While the
article did provide several perspectives, it did not include that
salient facts that brought Kelly to file his lawsuit in 1999. Arriba
Soft's Arriba Vista Image Searcher, not ditto.com, was the company sued
for placing his images in a search results page -- no copyright
statement and no indication of ownership -- with a box adjacent to each
image that the viewer could use to "Download to Arriba Express." Arriba
Express was a proprietary software program that allowed users to
download images from the Internet for their own use. Arriba Soft boasted
in press statements that they planned to sell one million copies worth
$149 million of Arriba Express packaged "seamlessly" with the use of the
images found in their image searcher.
http://www.latimes.com/business/cutting/20000221/t000016821.html
· On February 23, 2000, picking up on the February 21, 2000, story in the
Los Angeles Times, Dana Blankendorn, in a column at ClickZ, took a shot at Kelly vs Arriba Soft for attempting to shut down the Internet. Even if Al Gore did invent the
Internet, Kelly vs Arriba Soft is not about shutting down the Net! Please see Mr. Blankenhorn's article, The Dumbest Lawsuit In Web History.
The following open letter was sent to Mr. Blankendorn and posted in the
ClickZ Forum newsletter:
Dana, thanks for giving me the opportunity to respond to your posting,
The Dumbest Lawsuit in Web History, at
http://gt.clickz.com/cgi-bin/gt/cz/cz.html?user=ffffffffffff&article=1361.
It would have been good if you had contacted me and talked with me about
the lawsuit prior to writing your article. Since you did not do so, let
me explain why the lawsuit is really not the "dumbest lawsuit in web
history!"
I am certain that some people will consider my lawsuit filed on April 6,
1999, "dumb" as there are many diverse opinions and thoughts stated on
the Internet. First of all, the Los Angeles Times' article, as written
(or perhaps edited down by an editor to fit space), does lead anyone who
reads it to believe that the focus of the lawsuit is to shut down search
engines.
Not so.
If you base your entire knowledge about the lawsuit to the article that
appeared in the Los Angeles Times
http://www.latimes.com/business/cutting/20000221/t000016821.html, you
and your readers could easily come to the same conclusion. The LA Times
article did not tell the entire story, only half of it. My lawsuit was
not about ditto.com. My lawsuit does not seek to close down the
Internet (even if Al Gore claims he invented it!). My lawsuit does not
seek to shut down legitimate search engines.
My lawsuit was filed against Arriba Soft, Inc., which operated the
Arriba Soft Image Searcher at http://arribavista.com from 1998 until mid July 1999. They took some 2.5 to 3.0 million images from websites
around the world without permission and without compensation for a
special marketing purpose, to market their proprietary software called
"Arriba Express." I did not file a lawsuit against the Internet or
against search engines.
My lawsuit was filed against Arriba Soft, Inc., and not ditto.com,
because they used my images to support a marketing program for their
software, Arriba Express. They posted all of the images, mine included,
in a database which was designed to support the marketing of Arriba Express.
They projected sales of 1,000,000 units at $149 each for 1999 alone.
They posted my images with a clickable box that allowed the downloading
of my images into their software which could then be manipulated for the
users purposes according to Arriba Soft's hype on their image searcher.
It should be noted that the Arriba Soft "DittoSpyder" did NOT honor
robots text based on a large number of complaints posted on various chat
groups. I could have built a robots text file to protect my website
from all honest robots but I did not want then, or now, to hide my
websites. I do not market my images on the Internet; I use my images to
market my products and services on the Net. Their inclusion in the
Arriba Vista Image Searcher, posted alone, deep linked to the individual
jpg, without accompanying text to identify their purpose did nothing
more than serve them up as a free download into Arriba Express, not
benefit me or those who would seek information about the gold rush. My
California's Gold Rush Country website (http://goldrush1849.com) offers
a tremendous amount of useful information to school children and others
with a strong interest in the gold rush and so to post just an image,
without the accompanying information, served only to enrich Arriba Soft.
Arriba Soft changed its name shortly after I filed my lawsuit to
ditto.com and changed much of the way that it operates about four months
later. All of the damaging information from the Arriba Vista website
has been removed by ditto.com so you cannot go there and see how it
worked then. It exists only in files with my Attorney and with Judge
Taylor. If you go to ditto.com, you will find an even different
ditto.com that is using many of the images carried forward from Arriba
Vista as it seeks annual sales of $100 million from its business
operation. Type in http://arribavista.com and see where it takes you.
Right to http://ditto.com
My lawsuit seeks damages from Arriba Soft for its egregious infringement
of my images. Dumb? Again, I suggest that you ask the hundreds of
thousands of people whose jobs depend of creative if it is okay to have
their work used for the enrichment of someone else without permission
and without compensation.
Dana, lets start with you since as a writer you use your creative
talents to generate income. What would you do if you found someone
using your creative for their own enrichment without permission, without
compensation, be it text or images/graphics? I'll bet you would "Rant
and Rave".
For those hundreds of thousands of individuals whose livelihood depends
on creative work, images, photos, design, actors, writers, song writers,
etc., the lawsuit represents an opportunity to support copyright on the
Internet and help to stop egregious theft of copyrighted material, be it
images, graphics, text or music. If Judge Taylor's decision stands as
written, anyone's material, including your own, can be taken and
manipulated for other's profit. The Internet represents an excellent
marketing tool for artists. But, if your material is taken by dishonest
companies to use to market their own products, that poses a problem for
all of us. You may read about the organizations that I am proud to have
support me at http://gag.org and http://asmp.org.
If you would like to have more information, the correct information
about the lawsuit, you may visit http://netcopyrightlaw.com and read the
original press releases filed under Media Coverage. Slow reading, but
factual.
With best regards,
Leslie A. Kelly
NetCopyrightLaw Net Consulting Services
· Photographer To Appeal Ditto.com Net Imaging Copyright Ruling Newsbytes/Yahoo! News Asia 12/23/1999
· Web image copyrights unsettled: Court case highlights problems with protecting artwork online Inman News Service 12/23/99
· Court gives no copyright protection to Net images Deja News 12/22v/99
· Photographer To Appeal First Internet Image Copyright Law Decision Favoring Arriba Soft InternetWire 12/20/1999
· Court Ruling Denies Copyright Protection For Images On The Net 7am News FreeWire 12/21/1999
· Thumbnail Not Even a Tiny Infringement The National Law Journal 11/30/1999
· Graphic Artists Guild Funds Net-Copyright Infringement Case 7am News FreeWire 09/14/1999
Press Releases
For Immediate Release
Huntington Beach, California. Wednesday, March 22, 2000.
Leslie A. Kelly, Photographer, has filed an appeal in the recent decision by Judge
Gary L. Taylor in his Internet copyright infringement case against
Arriba Soft, Inc. The appeal will be handled by Charles D. Ossola, a
partner at Arnold & Porter in Washington, D.C. and the head of that
firm's Intellectual Property & Technology Practice Group. Mr. Ossola is
a litigator and copyright expert. He also serves as the outside counsel
for the American Society of Media Photographers, Inc. The case, filed
under the 1998 Millennium Digital Copyright Act, is the first of its
kind filed against an image search engine and has attracted widespread
interest due to its potential impact on the use of images, music and
other copyrighted material on the Internet.
Steve Krongold, Esq, The Krongold Law Firm, Costa Mesa, CA, first filed
suit in Federal District Court, Santa Ana, California, against Arriba
Soft, Inc., operating as the Arriba Vista Image Searcher, in April 1999,
alleging copyright infringement of images from several of his websites
(http://goldrush1849.com and http://showmethegold.com). Arriba Soft,
Inc., which changed its name in July 1999 to ditto.com, took more than
two million images from websites around the world without prior request,
without permission and without compensation to support its marketing
programs.
Kelly notes that "The court's decision in this case will likely
establish the rules for use of images, and very likely, music and text,
on the Internet for the Millennium. Its impact, regardless of the
outcome, will cause changes in the way individuals and businesses think
about and use the Internet."
Kelly has received support from trade and industry groups to include the
Graphic Artists Guild and The American Society of Media Photographers,
Inc. Additional interested trade groups are expected to file Amicus
briefs in support of his Appeal.
Kelly operates a number of websites in support of his business interests
at Amish.Net (http://amish.net), Show Me The Gold® Tours
(http://showmethegold.com)and California's Gold Rush Country
(http://goldrush1849.com).
Contact(s): Leslie A. Kelly, Les Kelly Enterprises (714) 846-0437
mailto:leskelly@deltanet.com
Charles Ossola, Esq., Arnold & Porter, (202) 942-5000
Vic Perlman, ASMP (215) 451-2787
Paul Basista, Graphic Artists Guild, (800) 500-2672
Steve Krongold, Esq., The Krongold Law Firm, (714)
546-1800
PHOTOGRAPHER TO APPEAL FIRST INTERNET IMAGE COPYRIGHT LAW DECISION FAVORING ARRIBA SOFT
Huntington Beach, California. Leslie A. Kelly, photographer and publisher, confirmed today that Judge Gary L. Taylor ruled against him in his copyright infringement case against Arriba Soft Corporation, now known as ditto.com, Naperville, IL, in a decision filed on December 15, 1999 (Case SA CV 99-560 GLT (JW) United States District Court, Central District of California, Southern Division). Kelly filed suit on April 6, 1999, alleging copyright infringement by Arriba Soft’s ArribaVista Image Search Engine when it posted his copyrighted images in its image search engine without permission and without compensation.
According to Kelly, Judge Taylor concluded that "On apparent first impression, the Court holds the use by an Internet ‘visual search engine’ of others’ copyrighted images is a prima facie copyright violation, but it may be justified under the ‘fair use’ doctrine. The Court finds that, under the particular circumstances of this case, the ‘fair use’ doctrine applies, and the Digital Millennium Copyright Act is not violated.
In a prepared statement, Kelly stated: "Obviously, I am quite disappointed with Judge Taylor’s ruling not only against me in my specific case but against all creative artists, graphic designers, illustrators and photographers. Arriba Soft Corporation took more than two million images from web sites worldwide, without permission and without payment, in a commercial enterprise to sell it’s software and used these images to form the core database to operate it’s own Internet business. In July 1999, Arriba Soft changed its company name to ditto.com but maintained the same image database. In September 1999, executives of ditto.com were quoted in press stories that they anticipated achieving annual revenues of $100 million based on their use of these images.
"Because protection of intellectual property on the Internet is too important to let this decision go unchallenged, in the next few weeks, I will seek review of the decision and will review potential law firms to write an appeal as well as seek further assistance from groups adversely impacted by this decision.
"To determine that Arriba Soft’s use of my work without permission was just a small portion of their overall business and so therefore constitutes ‘fair use’ (or ‘free use’) clearly sends the wrong message to artists who hope to use the Internet as an important new market for their services. The Internet is huge and its potential is awesome. However, with the word ‘free’ used by so many companies on the Internet to market their services, there is serious concern that this decision, left unchallenged, will add to the already widespread and unfortunate belief that anything and everything on the Internet is ‘free’ for the taking.
"I wish to thank all of my fellow members and the leadership of Graphic Artists Guild (GAG) for their past and continuing financial support in this case. GAG, Local 3030 of the United Auto Workers, has not only supported me in my case, but also provided financial support for freelance writers, led by Jonathan Tasini, President, National Writers Union, UAW Local 1981, in their recent successful bid to uphold rights for electronic use of their work."
About Leslie A. Kelly
Kelly, a photographer and publisher from Huntingtion Beach, California, operates web sites Goldrush1849 and Showmethegold.com to support his business activities and recently established a web site at http://netcopyrightlaw.com to provide information about copyright issues and offer copyright related consulting services. He has written and/or illustrated travel related articles and published or provided photograhy for books about Laura Ingalls Wilder (including Laura Ingalls Wilder Country), the Amish (America’s Amish Country) and the California gold rush (California’s Gold Rush Country). Kelly is a member of the Graphic Artists Guild (GAG) and the American Society of Media Photographers, Inc. (AMSP).
Contacts:
Leslie A. Kelly,
Les Kelly Enterprises
(714) 846-0437
E-Mail: leskelly@deltanet.com
Paul Basista,
Executive Director, Graphic Artists Guild
(212) 791-3400
Web site: http://gag.org
Victor Perlman,
Managing Director and General Counsel ASMP
(215) 451-2767
Web site: http://asmp.org
Kelly is represented by Counsel:
Steven L. Krongold, Esq.,
THE KRONGOLD LAW FIRM,
Costa Mesa, CA
(714) 546-1800
James G. O'Neill, Esq.,
LAW OFFICE OF JAMES B. O'NEILL,
Costa Mesa, CA
(714) 549-8609
Press Statement November 30, 1999
For Immediate Release/Statement In Response To News Article in The National Law Journal, November 30, 1999
November 30, 1999. Huntington Beach, California.
The National Law Journal ran an article on their Internet page today that gives the impression that a decision has been handed down by Judge Taylor in my lawsuit against Arriba Soft Corporation. URLs below point to the story published on two separate web sites. The stories are based on an interview with the lead Attorney for Arriba Soft in the case and is certainly premature. While a preliminary decision was issued, it was and is still not the final decision as one might be led to believe in the NLJ stories.
On Monday, November 15, 1999, at the scheduled hearing in my case, Judge Taylor issued a preliminary decision on motion for summary judgement to which both parties had agreed as a means to speed the case along. The motion for summary judgement is common practice in US courts when both parties agree to stipulation of facts and when the remaining issues are strictly an interpretation of the law. At the hearing, Judge Taylor presented both parties with his written "preliminary" decision which was in favor of Arriba Soft. In most cases, at the end of the oral arguments, the Judge simply signs off on the "preliminary" decision and it then becomes THE decision.
Each Attorney was allowed five minutes to present oral argument for and against the decision. While my Attorney was persuasive, he did not convince Judge Taylor to change his verdict outright but the Judge did agree to review his findings and issue a written final decision in due course. We are uncertain how long this process will take but it could be several weeks or
longer from November 15, 1999.
It is unusual for a Judge to change their original decision but it is possible. You will note in the NLJ article that Vic Perlman of the ASMP totally disagrees with the "fair use" argument based on size of the image that Judge Taylor offered in support of Arriba Soft's use of my images for their commercial purposes.
Once Judge Taylor announces his decision, I'll make a formal statement at that time.
Leslie A. Kelly
Press Release April 6, 1999
For Immediate Release
Huntington Beach, California. Tuesday, April 6, 1999. Leslie A. Kelly, a Huntington Beach photographer and publisher, dba Les Kelly Publications, Les Kelly Enterprises and Show Me The GoldSM announced today that Attorney Steven L. Krongold, Esq., and Attorney James G. O'Neill, Esq., filed a complaint alleging copyright infringement and related charges against Arriba Soft Corporation, 200 East Fifth Avenue, Suite 108, Naperville, Illinois 60563 and its ArribaVista.com Image Search Engine. The complaint was filed on April 2, 1999, as Case No. SACV 99-560 GLT Anx. The case was assigned to the Honorable Gary L. Taylor, U.S. District Court, Central District of California, Santa Ana, California.
Kelly operates two websites in conduct of commerce on the Internet (California's Gold Rush Country which supports his publishing business and Show Me The GoldSM at which supports incentive and rewards travel programs to the California Gold Rush
Country). It was from these and other authorized websites that Kelly alleges his images were copied and posted by Arriba Soft Corporation in its Image Search Engine.
Contact Information:
Counsel Steven L. Krongold, Esq.,
THE KRONGOLD LAW FIRM,
Costa Mesa, CA (714) 546-1800
Counsel James G. O'Neill, Esq.,
LAW OFFICE OF JAMES B. O'NEILL,
Costa Mesa, CA (714) 549-8609
This press release prepared and distributed by
Les Kelly Publications, 15802 Springdale Street, Suite 14, Huntington Beach, CA 92649
Press Release February 1, 1999
FOR IMMEDIATE RELEASE /Via E-Mail
CALIFORNIA FIRM ALLEGES COPYRIGHT INFRINGEMENT BY ARRIBAVISTA IMAGE SEARCHER
Contact Leslie A. Kelly at:
- Les Kelly Enterprises
- 15802 Springdale St., Suite 14
- Huntington Beach, CA 92649-1765
- E-mail:leskelly@deltanet.com
- (714) 846-0437
HUNTINGTON BEACH, CALIFORNIA. Monday, February 1, 1999. For the November 10, 1998, launch of the new image search engine, ArribaVista Image Searcher, Arriba Soft Corporation CEO Michael J. Lyons, is quoted in a company press release: "We all communicate more effectively through visuals and the Web is an incredibly rich environment for visual exploration. Our mission is to help people easily find the pictures they know they want and help them discover many others they’re glad they found along the way."
In an interview in the October 1997 edition of Chicago Software Newspaper, Lyons is quoted as stating, in part, about his four successful career startup operations: "I’m as pumped up today as I was when I started my first company because the Net has created a whole new world and the cowboys are back. It is the entrepreneurs who dominate that world right now."
With these quotes as backdrops, James G. O'Neill, Attorney, specializing in Patent, Trademark and Copyright cases, Costa Mesa, California, has sent notice to Arriba Soft Corporation of Naperville, Illinois, and its ArribaVista Image Searcher, alleging copyright infringement on behalf of Leslie A. Kelly of Les Kelly Enterprises, Huntington Beach, California. According to Kelly, "The cowboys may be back but this time the Marshals are in town."
Kelly, a photographer and publisher based in Huntington Beach, California, has discovered that copyrighted photography has been copied from his web sites Show Me The Gold and Gold Rush 1849, despite copyright notices, and posted by Arriba Soft Corporation in its new ArribaVista Image Searcher. The images have been posted within ArribaVista’s web site as individual "jpg" files, with their own distinct image file number and surrounded by banner advertisements, separate and apart from their context within his web sites, in Arriba Soft Corporation’s ArribaVista Image Searcher. All copyright management information (CMI) have been removed from the images.
According to Kelly and O'Neill's research, Arriba Soft Corporation launched ArribaVista Image Searcher as part of its overall corporate marketing effort for Arriba Express, an image file and storage system and its apparent major product. The system incorporates software with the name of WebVac which will literally "vacuum" all image files from a targeted web site, without regard to ownership of the targeted web sites. In a review of the software package which retails for $149, PC Magazine Online notes in a review dated January 19, 1999, by Stephen W. Plain, in praise of the software: "Arriba Express’s WebVac feature lets you ‘vacuum’ all the media assets off any given Web site."
After review of the ArribaVista web site, Kelly concluded that Arriba Soft Corporation’s ArribaVista Image Searcher had sought out his images along with approximately five million other images from web sites across the Internet.
"Despite copyright notices," according to Kelly, "it appears that ArribaVista ‘vacuumed’ every one of the images in both of my web sites along with a number of images authorized for use in other web sites. We are alleging that Arriba Soft Corporation infringed my images for its financial gain and for use by its customers and users. Based on copyright statutes and the more recent Millennium Digital Copyright Act, signed into law by President Bill Clinton on October 28, 1998, infringement for profit subjects the violator to damages and the potential for fines of $1,000,000 per violation!" Adds Kelly, "The Millennium Digital Copyright Act adds new terms and conditions that both protect and restrict image use by search engines. In the case of Arriba Soft Corporation, their use of my copyrighted images seems to place them at a very high risk for damages and fines!"
Kelly, whose work has been published in a number of books by HarperCollinsPublishers or self published on the subjects of Laura Ingalls Wilder, the Amish and the California Gold Rush, and published in numerous magazine articles, calendars, business brochures, etc., is deeply concerned about protecting the rights to his photography and artistic creation as well as loss of revenue from the alleged infringement by Arriba Soft Corporation’s ArribaVista Image Searcher. Kelly operates two web sites, one under the name of California's Gold Rush Country to support his publishing business and another under the name of Show Me The GoldSM to promote an incentive program licensing business and an incentive and rewards tour business in the California Gold Rush Country. His web sites are listed on the major search engines. Both web sites are clearly marked with copyright and trademark notices.
In the November 10, 1998, Arriba Soft Corporation’s press release, say Kelly, "The core purpose of the ArribaVista Image Searcher is apparent." The press release notes, in part, "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."
Kelly comments, "I am shocked and dismayed to see my images displayed, without copyright management information and without permission, by ArribaVista Image Searcher for use by purchasers of Arriba Express from Arriba Soft Corporation and others. It is imperative that search engines honor copyright and trademark laws while in pursuit of offering images to their customers. Opt out, as in the case of Compaq’s AltaVista™ AV Photo Finder and now ArribaVista Image Searcher, makes it very difficult for a small company to protect its creative property from piracy while pursuing honest trade on the Internet. It is quite burdensome, financially, for small companies to take appropriate legal action where there are violations by large corporations. Fortunately, traditional copyright law and the new Millennium Digital Copyright Act offer protection and provide penalties for infringement."
Kelly notes that Compaq’s AltaVista™ AV Photo Finder, to which O’Neill sent notice of copyright infringement in October 1998, and operates at http://www.altavista.com, and ArribaVista Image Searcher, and operates at http://www.arribavista.com, both store images in their own web sites and assign their own file numbers to the images which they have taken from web sites without prior request or any form of permission. "It appears that they not only have similar names and similar URLs, they seem to operate in the same way," Kelly concludes.
"In the case of ArribaVista Image Searcher, however, there is no visible copyright warning of any kind on the search page. There is a copyright statement which can be reached by clicking on Copyright at the bottom of this page. The disclaimer that was in place until Monday, January 25, 1999, dwelled more on ‘fair use’ than concern about protecting the owners of the infringed images. From midday Monday, in response to criticism about infringement from copyright owners of infringed images, the text was hastily rewritten with contradictory statements about ownership and use. The statement acknowledges that ArribaVista Image Searcher contains images for which it is NOT the copyright owner but does claim ownership of the entire collection when it states "Arriba Soft Corporation makes no copyright claim to the individual images aggregated on the web site, but does claim copyright ownership in the compilation of images displayed on the web site."
"Given the statements attributed to CEO Lyons, that ‘the cowboys are back,’ it seems to fit within the style of the organization to claim ownership of intellectual property that it ‘vacuumed’ from the Web." According to Kelly, "With some five million images in the ArribaVista Image Searcher, none of which have ever been the property of Arriba Soft Corporation, it is a very unique claim, even for a 49er of the gold rush era. Even this year, 1999, on the Sesquicentennial of the California Gold Rush, I don’t believe that their claim will hold up in court."
Concludes Kelly, "Whoa there, pardner."
For a demonstration of the ArribaVista Image Searcher, click here
Enter in quotes, "Malakoff Diggins" and press enter. ArribaVista image files display by dragging the mouse arrow over the thumbnail image. For a larger version of a specific image, double click on the image. This "window in window" image is actually the specific .jpg file loaded from Gold Rush 1849.com Throughout the process, you will note that there is NO copyright management information (CMI) displayed about the owner of the images. There are, of course, banners above each window.
If you are unable to access the image noted above, please contact Leslie A. Kelly and samples which have been preserved of infringed images from the ArribaVista Image Searcher will be e-mail for your review.
This press release prepared by and distributed by
Leslie A. Kelly
Les Kelly Enterprises
15802 Springdale Street, Suite 14
Huntington Beach, CA 92649-1765
(714) 846-0437 Fax (714) 846-8858
E-mail: Leslie A. Kelly
Show Me The Gold
Gold Rush 1849
Show Me The GoldSM (Application pending USPTO)
Leslie A. Kelly is represented by Legal Counsel
James G. O'Neill
Attorney at Law
3151 Airway Avenue, Suite K-105
Costa Mesa, CA 92626
(714) 549-8609 Fax (714) 549-8626
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